Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Motion dated 19th July 2017 within the main suit)· [2018] KEELC 3152 (KLR)

Mombasa Cement Limited v Salim Masdud Abdalla & 4 others [2018] KEELC 3152 (KLR)

Environment and Land Court (not expressly stated in the excerpt)
29 May 2018
CYC. Yano
2,611 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to strike out a disputed affidavit, ruling that conflicting evidence must be tested at trial, not decided early.

What this practically means

#

Executive summary

#
This ruling by C. Yano, Judge, delivered at Mombasa on 29th May 2018, determines a Notice of Motion dated 19th July 2017 filed by the 5th Defendant, Salim Al-Amin Suleiman Mazrui, brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant, former Chairman of the Board of Trustees of the Development Welfare Wakf Land Trust, sought expungement of an affidavit sworn on 8th June 2017 which he disowned as a forgery, adoption of his earlier affidavit of 19th May 2017, and amendment of the defence filed by Kanyi J & Company Advocates to remove his name, together with leave to file his own defence. The application was supported by the 1st and 2nd Defendants but opposed by the 3rd and 4th Defendants and the Plaintiff, who maintained the impugned affidavit was genuine and that the contradictions warranted trial interrogation, with the Plaintiff's deponent even urging an oath before the Chief Kadhi under Islamic Sharia law. The court identified two issues: whether it could expunge contested affidavits at the interlocutory stage, and whether the defence should be amended as sought. It noted the Applicant had taken contradictory positions, observing that one cannot approbate and reprobate in the same proceedings. Holding that both affidavits are sworn evidence carrying evidential value to be tested by cross-examination at trial, the court declined to conduct a mini-trial, citing Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 Others (2015 eKLR). The amendment prayer was also refused as misconceived, the proper avenue being Order 8. The motion was dismissed with costs.

Key legal issues

#
01

Jurisdiction to expunge conflicting affidavits at interlocutory stage

Holding

The court declined to expunge either affidavit; both remain on record to be tested at trial

Reasoning

The three affidavits are at variance and rival document examiners' reports have been filed. Because the documents carry evidential value on matters to be determined in the main suit, determining them now would force the court to comb through the affidavits and make definitive conclusions without hearing witnesses under cross-examination, risking an unfair mini-trial.

p. 3
02

Amendment of defence to remove the 5th Defendant

Holding

Prayer refused; not available in such an application

Reasoning

The court held that expunging the Applicant's name from the defence through this application does not fall within the realm of matters grantable in such an application. Order 8 of the Civil Procedure Rules provides the proper avenue for a party wishing to amend pleadings, and the Applicant should invoke that procedure instead.

p. 3
03

Contradictory positions within the Applicant's own application

Holding

The Applicant's inconsistent positions undermined the application

Reasoning

The motion's paragraph (2) stated the 8th June 2017 affidavit was sworn by the 5th Defendant, while the grounds described it as purportedly signed - two irreconcilable positions in one document. The Applicant's supporting affidavit was equally unclear. A party cannot be allowed to approbate and reprobate in the same proceedings.

p. 3

Legal principles established

#
  • A party cannot approbate and reprobate - take two contradictory positions in the same proceedings
  • Where contested affidavits contain matters of evidential value going to the merits, the court at interlocutory stage should not make findings of opinion or conclusion, leaving contradictions to be tested by cross-examination at trial
  • A party who has been defended by an advocate must either file a Notice of Appointment of Advocate or a Notice of Change of Advocate under Order 9; there is no such document as a 'notice of appointment and change'

Court orders

#
  1. 1.The Notice of Motion dated 19th July 2017 is dismissed
  2. 2.Costs of the application awarded against the Applicant

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 51 Rule 1; Order 9; Order 8

Cases cited (1)

  • Vivo Energy Kenya Limited –vs- Maloba Petrol Station Limited & 3 Others
    (2015 eKLR)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mombasa Cement Limited v Salim Masdud Abdalla & 4 others [2018] KEELC 3152 (KLR)", Case Analysis (2018). Not stated in the judgment (Motion dated 19th July 2017 within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3152/eng@2018-05-29

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