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ELCDismissedNot stated in judgment· [2017] KEELC 2981 (KLR)
Ngenda Location Ranching Co. Ltd v Michael Koleken Koikai [2017] KEELC 2981 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's High Court dismissed a bid to strike out an injunction application because the documents were actually signed and properly commissioned on the court file.
What this practically means
#Executive summary
#The Plaintiff commenced suit by plaint and simultaneously filed a Notice of Motion under certificate of urgency seeking a temporary injunction against the Defendant. Before the application could be heard, the Defendant raised a Notice of Preliminary Objection dated 15th March 2017 contending that the Notice of Motion was not properly filed, the Supporting Affidavit was unsigned by the deponent, and the affidavit was not commissioned before attestation, and that the application was therefore incompetent and ought to be struck out with costs. The Plaintiff opposed, asserting that all documents were duly signed and commissioned. Counsel canvassed the objection; Mr Andama for the Defendant relied on Mukisa Biscuits Ltd, Order 2 Rule 6 of the Civil Procedure Rules and section 5 of Chapter 15 of the Laws of Kenya, submitting the application was incompetent and incapable of amendment, while Ms Morande for the Plaintiff maintained the documents were signed. The judge disposed of the objection by examining the pleadings on the court file and found that, contrary to the Defendant's assertions, the certificate of urgency, Notice of Motion and Supporting Affidavit filed on 26th September 2016 were all duly signed, properly attested and appropriately commissioned. The Preliminary Objection was accordingly dismissed with no orders as to costs. The underlying injunction application remains for determination.
Key legal issues
#01
Whether the Notice of Motion and Supporting Affidavit were defective
Holding
The documents were duly signed, properly attested and commissioned, so the objection failed
Reasoning
The court examined the original court file rather than relying on counsel's competing assertions. Contrary to the Defendant's claim that the Supporting Affidavit was unsigned and uncommissioned, the judge found all documents filed on 26th September 2016 in proper form. The preliminary objection therefore had no merit and was dismissed.
p. 2
Legal principles established
#- A preliminary objection based on alleged defectiveness of documents must be determined against the actual state of the court file
Court orders
#- 1.Preliminary Objection dismissed with no orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction (injunction application under Civil Procedure Rules); no specific provision stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngenda Location Ranching Co. Ltd v Michael Koleken Koikai [2017] KEELC 2981 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2981/eng@2017-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.