Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 294 of 2002· [2007] KECA 315 (KLR)

Peter G N Nganga v Harrison Maina Kariuki [2007] KECA 315 (KLR)

Court of Appeal of Kenya
7 June 2007
ROR. S. C. OmoloPWP. N. WakiJOJ. W. Onyango Otieno
918 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a court application filed without a supporting affidavit is fatally defective and must be struck out.

What this practically means

#

Executive summary

#
This was an appeal from a ruling of Mwera, J. delivered on 5th July 2002 in H.C.C. Suit No. 1037 of 2000. The background: the Appellant discontinued H.C.C.C. No. 1037 of 2000 on 7th September 2001 and then filed H.C.C.C. No. 1364 of 2001. The Respondent moved by notice of motion dated 8th October 2001 under Order 24 Rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking a stay of the subsequent suit until the costs of the discontinued suit were paid. The Appellant took a preliminary objection contending the motion was incompetent. The High Court dismissed the objection and made orders on the motion, prompting this appeal. Before the Court of Appeal it emerged that although the supporting affidavit was dated 8th October 2001, it was lodged on 12th October 2001, seventeen days before the motion itself was lodged on 29th October 2001. Respondent's counsel conceded the affidavit could not support the motion, leaving no valid motion before the High Court. The court held that under Order 50 Rule 3, where a motion is grounded on affidavit evidence the affidavit must be served with it; a motion without such support is incompetent and the only proper order on it is striking out. The court allowed the appeal, set aside all the orders of Mwera, J., substituted orders allowing the preliminary objection and striking out the motion, and, having regard to the history and conduct of the litigation, ordered each party to bear their own costs in both courts. This decision binds subordinate courts and the High Court on the competence of unsupported motions.

Key legal issues

#
01

Competence of an unsupported notice of motion

Holding

The notice of motion seeking stay was incompetent because the supporting affidavit was lodged 17 days before the motion and could not support it; counsel conceded as much.

Reasoning

The affidavit in support was dated 8th October 2001 and lodged on 12th October 2001, while the motion itself was only lodged on 29th October 2001. Respondent's counsel conceded the affidavit could not have been in support of the later-filed motion. The court held that where a motion is grounded on affidavit evidence, the affidavit must be served with the motion; without it there was no valid motion before the High Court judge, and the proper order was striking out.

p. 2
02

Scope of Order 24 Rule 4 stay of subsequent suit

Holding

Only Order 24 Rule 4 was relevant to the Respondent's application for stay of a subsequent suit until costs of the discontinued suit were paid; no orders could issue on a defective motion invoking it.

Reasoning

The Respondent's motion invoked Order 24 Rule 4, section 3A of the Civil Procedure Act and other enabling provisions. The court confined relevance to Order 24 Rule 4, which allows a stay of a subsequent suit filed before payment of costs of a discontinued suit on the same cause of action. Despite the substantive rule, the vehicle itself - the unsupported motion - was fatally defective and had to be struck out in its entirety.

p. 1

Legal principles established

#
  • Where a motion is grounded on evidence by affidavit, a copy of the supporting affidavit must be served with it; a motion lodged without such support is incompetent and no orders may issue on it save striking it out.
  • A notice of motion unsupported by any affidavit is incompetent and the only order properly made on it is striking it out; no substantive orders for or against either party may issue.

Court orders

#
  1. 1.Appeal allowed
  2. 2.All orders made by Mwera, J. on 5th July 2002 set aside
  3. 3.Substituted order allowing the Appellant's notice of preliminary objection dated 28th May 2002
  4. 4.Respondent's notice of motion dated 8th October 2001 and lodged on 29th October 2001 struck out
  5. 5.Each party to bear their own costs of the appeal and in the High Court

Authorities

#

Legislation

  • Civil Procedure RulesOrder 24 Rule 4
  • Civil Procedure RulesOrder 50 Rule 3
  • Civil Procedure Actsection 3A
On appeal from
High Court of Kenya at Milimani Commercial Law Courts, Nairobi
H.C.C. Suit No. 1037 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act and Appellate Jurisdiction Act (appeal from High Court ruling); no specific constitutional provision stated

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Peter G N Nganga v Harrison Maina Kariuki [2007] KECA 315 (KLR)", Case Analysis (2007). Civil Appeal 294 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/315/eng@2007-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.