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ELCOtherNot stated in the judgment· [2018] KEELC 3191 (KLR)

Ajiwa Shamji Limited v Kenya National Highways Authority & another [2018] KEELC 3191 (KLR)

Environment and Land Court
3 May 2018
MGMary M. GitumbiSOSamson O. Okong'o
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a company can file its corporate authority to sue after filing the case, and a caretaker's affidavit remains valid.

What this practically means

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Executive summary

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This ruling determines a preliminary objection dated 10th August 2015 raised by the 1st Defendant/Respondent against a suit instituted by the Plaintiff/Applicant, a company. The objection had two limbs: first, that the suit and the application were incurably defective for want of authority from the plaintiff company, because the verifying affidavit sworn by Hussein Shamji, a director, did not indicate authority under the seal of the company as required by Order 4 Rule 4 of the Civil Procedure Rules; and secondly, that the affidavit of Patrick Mulili Kaluva, described as a caretaker of the plaintiff company, was defective and invalid for want of authority and capacity. Both parties filed written submissions and agreed that authority under seal was required; they differed only on when it had to be filed - the 1st Defendant contending for contemporaneous filing with the plaint, the plaintiff contending that it could be filed any time before the suit was certified ready for hearing, and attaching a sealed resolution dated 30 July 2015 for adoption. The court held that Order 4 Rule 4 prescribes no timelines, and that the plaintiff could therefore file its authority under seal at any time prior to certification for hearing. On the second limb, the court adopted the reasoning of Maraga Ag J in Peter Onyango Onyiego v Kenya Ports Authority, holding that only verifying affidavits must be sworn by the plaintiff or authorised agents, and that all other affidavits may be sworn by anyone possessed of the facts; failure to state authority is an ignorable irregularity under Order 18 rule 7. The preliminary objection was overruled with costs to abide the cause.

Key legal issues

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01

Timing of filing authority under seal for a corporate plaintiff

Holding

Order 4 Rule 4 requires a verifying affidavit for a corporate plaintiff to be sworn by a duly authorised officer, but prescribes no timeline; the authority may be filed before certification for hearing

Reasoning

The court accepted that authority under seal is required, but on reading Order 4 Rule 4 found no provision fixing when it must be filed. The 1st Defendant contended for contemporaneous filing, the plaintiff for filing any time before certification for hearing. The court adopted the plaintiff's position and permitted the resolution dated 30 July 2015 to be filed and adopted.

p. 2
02

Capacity of a non-officer (caretaker) to swear affidavits for a corporation

Holding

Other than verifying affidavits, affidavits filed and used in court can be sworn on behalf of a corporation by anybody possessed of the facts; lack of stated authority is a curable irregularity

Reasoning

Relying on the decision of Maraga Ag J in Peter Onyango Onyiego v Kenya Ports Authority, the court held that only verifying affidavits must be sworn by the plaintiff or authorised agents. All other affidavits may be sworn by anyone with knowledge of the facts, and failure to state authority is an irregularity ignorable under Order 18 rule 7. Accordingly the objection to Patrick Mulili Kaluva's affidavit failed.

p. 2

Legal principles established

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  • Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorised under the seal of the company (Order 4 Rule 4)
  • The rules prescribe no timeline for filing corporate authority under seal; it may be filed at any time before the suit is certified ready for hearing
  • Other than verifying affidavits, affidavits may be sworn on behalf of a corporation by anyone possessed of the facts; failure to state authority is an irregularity that can be ignored

Court orders

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  1. 1.The preliminary objection dated 10th August 2015 is overruled
  2. 2.Costs shall abide the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 4
  • Civil Procedure RulesOrder 3 Rules 1 to 5 (as then in force)
  • Civil Procedure Rules, 2010Order 9 Rules 1 to 4
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Rules, 2010Order 18 rule 7

Cases cited (1)

  • Peter Onyango Onyiego vs. Kenya Ports Authority
    Mombasa HCCC No. 496 of 1995
Jurisdiction invoked
First-instance civil suit under the Civil Procedure Rules, 2010 (Order 4 Rule 4; Order 9 Rules 1 to 4)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ajiwa Shamji Limited v Kenya National Highways Authority & another [2018] KEELC 3191 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3191/eng@2018-05-03

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