Kenya Commercial Bank Limited v Naftali Ruthi Kinyua & 1 other
The bottom line
#Kenya's Court of Appeal ruled that only offending paragraphs of a lawyer-sworn affidavit should be struck out, and courts must still weigh applications on their merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the entire replying affidavit, sworn by an advocate, violated Order 19 Rule 3 and warranted striking out in its entirety
The Court held that while prudence dictates an advocate should not swear affidavits for available clients, only the offending paragraphs should be struck out; the offending paragraphs can be severed and the remainder left on record
The essence of Rule 3 is that affidavits be confined to facts within the deponent's own knowledge. Paragraph 6, dealing with conduct at the auction, and paragraph 5, dealing with exercise of statutory power of sale, were factual matters properly deposable to by the auctioneer and the 1st appellant, not counsel. Those paragraphs offend the rule, but the whole affidavit need not fall; severance is the appropriate remedy under Order 19 Rule 6.
Whether the High Court could allow the amendment application as unopposed after striking out the replying affidavit
The High Court erred; even after striking out the replying affidavit it was duty-bound to examine the merits of the Chamber Summons application and consider the grounds of opposition
The object of amendment is to ensure litigation proceeds on the true state of facts. The trial judge allowed the application as if unopposed without evaluating whether a case for re-amendment was made out, and did not consider the grounds of opposition dated 19th July 2004. This was a fatal error rendering the ruling unsustainable in its entirety.
Whether limitation of actions raised in paragraph 4 of the replying affidavit was wrongly struck out
Yes; limitation is a question of mixed fact and law going to the competence of the proposed re-amended plaint, and the trial judge erred in striking out paragraph 4 without considering whether it was just to allow the amendment and whether prejudice or injustice would result
Adding a new party to a plaint may have retroactive effect prejudicial to rights under the Limitation of Actions Act. The proposed amendments concerned alleged fraud and breach occurring in or before 1999 and may be time barred. By striking out paragraph 4, the judge locked the appellants out of laying the factual basis for the limitation objection as a matter of law.
Legal principles established
#- As a matter of prudence and practice, an advocate should not swear or affirm an affidavit on behalf of a client who is available
- When a court strikes out a replying affidavit opposing an application, it must still examine the merits of the application itself; it may not allow it as if unopposed
- There is a distinction between amendment to a plaint and addition or substitution of a new party, which is governed by Order 1 Rule 10, and adding a party may have retroactive effect engaging the Limitation of Actions Act
- Whether a cause of action is affected by limitation is a question of mixed fact and law and goes to the competence of a suit
- Offending paragraphs of an affidavit that violate Order 19 Rule 3 may be severed and struck out while the rest of the affidavit remains on record
Court orders
#- 1.Paragraph 6 of the replying affidavit dated 19th July 2004 is struck out
- 2.Paragraph 5 of the replying affidavit dated 19th July 2004 is struck out
- 3.The Ruling of the High Court dated 17th July 2006 is set aside in its entirety
- 4.The respondents' Chamber Summons application dated 8th July 2004 is remitted to the High Court for fresh hearing on merit with the grounds of opposition and the replying affidavit as filed, save for paragraphs 5 and 6 which have been struck out
- 5.Each party to bear its/his/her costs in this appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 173 of 2003
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's appellate jurisdiction (no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited v Naftali Ruthi Kinyua & 1 other", Case Analysis (2015). Civil Appeal No. 20 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/642/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.