Ishmael K. T Keitany v Rose Christine Rono [2022] KEELC 456 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a late attempt to add documents because the lawyer's affidavit lacked personal knowledge and the application tried to dodge an earlier ruling.
What this practically means
#Executive summary
#Key legal issues
#Admission of additional documents after closure/close of a party's evidence
The application for leave to file a further list of documents was refused because the documents were within the Applicant's possession from the outset, no reason was given for their non-filing by the Applicant himself, and the claim of expungement was false.
The court perused the file and found the supplementary list of documents filed on 14th March 2018 was still on record and had never been expunged. The advocate's affidavit asserted expungement 'for unknown reasons' despite lacking personal knowledge. The court held the true purpose was to introduce a completely different set of documents late in the trial, ambushing the Respondent after four witnesses had testified, and to circumvent the ruling of 3rd June 2021.
Competence of an affidavit sworn by an advocate conducting the case
An affidavit in support of the application sworn by the Applicant's advocate, who had no personal knowledge of why the documents were not filed, was defective and rendered the application incompetent.
Relying on Order 19 Rule 3(1) of the Civil Procedure Rules and Stephen Bernard Oduor -V- Afro Freight Forwarders, the court held that affidavits must be confined to facts within the deponent's own knowledge, and that an advocate swearing an affidavit on contested facts in a case he is conducting is incompetent and amounts to an abuse of process absent special circumstances.
Legal principles established
#- Affidavits must be confined to facts the deponent is able to prove of his own knowledge; an advocate without personal knowledge of the facts cannot competently swear a substantive supporting affidavit.
- An application founded on false factual assertions and designed to circumvent an earlier ruling is an abuse of the process of court and will be dismissed.
Court orders
#- 1.The application dated 10th September, 2021 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Inherent jurisdiction of the court over its own suit and Civil Procedure Rules (Order 19 Rule 3(1)) on interlocutory applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ishmael K. T Keitany v Rose Christine Rono [2022] KEELC 456 (KLR)", Case Analysis (2022). Not stated in the excerpt (Eldoret Environment and Land Court file). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/456/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.