John Gachubi Kamenya v Samuel Njuguna Gitaka & 4 others [2014] KECA 121 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot seek to strike out someone's lawsuit if your own defence has already been struck out.
What this practically means
#Executive summary
#Key legal issues
#Legal basis for a striking-out application by a party whose defence has been struck out
Once the 4 respondents' defence had been struck out on 16th May 2002, their application of 21st January 2004 to strike out the appellant's suit had no legal basis and was an abuse of the process of court.
The respondents' defence had been struck out for failure to serve a copy as required by the then Order 8 Rule 1(2) of the Civil Procedure Rules. Having no defence on record, they were in the position of parties who had not defended the suit and could not invoke the court's discretionary jurisdiction to strike out the plaintiff's suit against them. The Court held this ground alone was sufficient for the Judge to have dismissed the application.
Affidavits sworn by counsel on disputed facts
The affidavit in support of the striking-out application was sworn by counsel who deposed to disputed factual matters without disclosing sources; such an affidavit should be given no or little weight.
The Court invoked its own prior decisions, Kenya Horticultural Exporters Ltd v Pape and Gerphas Alphonse Odhiambo v Felix Adiego, restating the rule that an affidavit in interlocutory proceedings must be confined to facts the deponent can prove of his own knowledge. Counsel who descends into the arena on disputed facts without personal knowledge undermines the affidavit's evidential value.
Identity of the party that instructed the distress for rent
The evidence showed the deceased's widows, not Gatuthu Njuguna Estates Limited, instructed the 5th respondent to levy distress, so the Judge erred in striking out the suit.
The Executor's affidavit denied giving authority for the distress; the advocates' letter of 17th October 2000 was written on behalf of the directors 'who [were] the landladies', not the company; the 2nd respondent admitted issuing the distress instructions; and the property remained registered in the deceased's name. The Judge's finding that the company gave the instructions was against the weight of the record.
Legal principles established
#- A party whose defence has been struck out has no legal basis to apply to strike out the plaintiff's suit against it; such an application is an abuse of the process of court.
- Counsel must not swear affidavits deposing to disputed factual matters of which they have no personal knowledge and without disclosing sources; such affidavits attract no or little weight.
Court orders
#- 1.Appeal allowed
- 2.Mutungi J's order of 4th March 2005 striking out the appellant's suit against the 4 respondents set aside
- 3.The appellant's suit against the 4 respondents reinstated for hearing and final determination by the High Court
- 4.The suit to be heard and disposed of on priority basis given the age of the case
- 5.The appellant awarded the costs of the appeal and of the 4 respondents' striking-out application, payable by the four respondents jointly and severally
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 838 of 2001
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution over appeals from the High Court (as then applicable); the judgment does not cite a specific provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gachubi Kamenya v Samuel Njuguna Gitaka & 4 others [2014] KECA 121 (KLR)", Case Analysis (2014). Civil Appeal No. 287 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/121/eng@2014-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.