Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of motion dated 24th February 2017 in Originating Summons dated 31st July 2014· [2018] KEELC 1419 (KLR)

John Otieno Nyaguti & another v David Otieno Okore [2018] KEELC 1419 (KLR)

Environment and Land Court
11 October 2018
SKS.M. Kibunja
904 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

#

The court refused to strike out a replying affidavit, holding that without expert handwriting evidence you cannot credibly challenge a deponent's own signature.

What this practically means

#

Executive summary

#
The Applicants, John Otieno Nyaguti and Michael Otieno Nyaguti, moved the Environment and Land Court by notice of motion dated 24th February 2017 seeking to have the replying affidavit sworn by the Defendant, David Otieno Okore, on 2nd March 2015 declared inadmissible, served out of time, and struck out, with costs. The application was opposed by the Respondent's replying affidavit sworn on 31st October 2017, and was heard orally on 7th May 2018. The court framed two issues: whether a reasonable case had been made for striking out the replying affidavit, and who should bear costs. On the signature challenge, the court noted that the Respondent had affirmed in his replying affidavit that the signatures were his, and that absent expert evidence to the contrary it had no reason to dispute that deposition. On timeliness, the court traced the chronology: the originating summons was filed and served in August 2014, the Respondent's counsel obtained an unspecified extension of time on 27th October 2014, and after mentions on 16th December 2014, the affidavit was sworn, filed and served on 2nd March 2015 when the 2nd Applicant accepted service in court without protest. The court held the affidavit was filed within the extended time and served timeously. The notice of motion was dismissed with costs. The judgment contains minor typographical errors in dates.

Key legal issues

#
01

Whether the replying affidavit should be struck out as unsigned by the Respondent

Holding

The challenge failed; the Respondent affirmed the signatures were his and no expert evidence suggested otherwise

Reasoning

The Applicants alleged the signature on the replying affidavit did not belong to the Respondent. In reply, the Respondent deponed that the signatures were his. The court held that absent expert evidence to the contrary, it had no reason to dispute the Respondent's deposition on the signature on the disposition of 2nd March 2015.

p. 2
02

Whether the replying affidavit was filed and served out of time

Holding

It was filed within the time extended by the court and served timeously on the date of filing

Reasoning

Counsel's application for extension of time to file a reply was granted on 27th October 2014 without a specified period, the court fixing mentions to monitor compliance. The affidavit was sworn, filed and served on 2nd March 2015, the date of the last mention, and the Applicant raised no protest when served in court. The service was therefore timeous.

p. 2

Legal principles established

#
  • In the absence of expert evidence to the contrary, the court cannot dispute a deponent's affirmation that signatures on an affidavit are his
  • Where a court grants an unspecified extension of time to file a reply and fixes mentions to monitor compliance, an affidavit filed on the date of the last mention is within time, especially absent protest by the party served

Court orders

#
  1. 1.The Applicants' notice of motion dated 24th February 2017 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Rules
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Otieno Nyaguti & another v David Otieno Okore [2018] KEELC 1419 (KLR)", Case Analysis (2018). Notice of motion dated 24th February 2017 in Originating Summons dated 31st July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1419/eng@2018-10-11

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