Avtar Sigh Bachu & another v Henry Taita Tum [2018] KEELC 3265 (KLR)
The bottom line
#Kenya's High Court allowed a 97-year-old defendant's son to substitute him in a long-running case, holding that substance matters more than procedural technicalities.
What this practically means
#Executive summary
#Key legal issues
#Competence of a supporting affidavit sworn by a non-party
The affidavit sworn by the defendant's son was competent; no prejudice was demonstrated by the respondents and the objection was a technicality.
The deponent stated he was the son of the 97-year-old defendant and this fact was uncontroverted. The respondents did not show what prejudice they would suffer if substitution was granted. Given the suit had been pending almost ten years, the court treated the objection as a delaying technicality and applied Article 159(2)(d) and the oxygen rules.
Counsel witnessing his client's Power of Attorney
While improper, this did not warrant striking out the application.
The court agreed with counsel for the respondents that an advocate ought not to witness his client's documents where he represents the same client, as it may place him in an awkward position. However, that impropriety was not a ground for striking out a non-contentious application in a matter pending for almost ten years.
Legal principles established
#- Counsel witnessing a client's document in a matter in which they represent that client is undesirable but not a ground for striking out a non-contentious application.
- Courts must administer substantive justice without undue regard to procedural technicalities, and a non-party son may swear a supporting affidavit for an aged defendant where no prejudice is shown.
Court orders
#- 1.The application for substitution of the defendant is allowed, invoking the court's inherent powers under section 3A of the Civil Procedure Act
- 2.The Amended Defence shall be served upon the Plaintiff within 7 days from the date of the ruling
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (inherent powers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Avtar Sigh Bachu & another v Henry Taita Tum [2018] KEELC 3265 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3265/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.