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ELCOtherNot stated in judgment (Notice of Motion dated 25th June 2021 in a suit filed by Plaint dated 7th November 2019)· [2022] KEELC 927 (KLR)

China Bente Industry (K) Ltd v Seline J Comen & another [2022] KEELC 927 (KLR)

Environment and Land Court
10 March 2022
OMOGUTTU MBOYA
4,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an application because the lawyer acting for the applicant also commissioned its supporting affidavit, voiding it entirely.

What this practically means

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Executive summary

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The 2nd Defendant, Landex Group Limited, moved the court by Notice of Motion dated 25th June 2021 seeking dismissal of the suit against it for lack of a reasonable cause of action and removal of its name from the proceedings, on the basis that its agency agreement with the 1st Defendant (the property owner of L.R No. 1/624/Kilimani/Wood Avenue) had been terminated and it no longer had any interest in the lease. The Plaintiff opposed through a replying affidavit sworn by its representative Tao Lang, showing that the supporting affidavit was commissioned by Samson Nyamai Masila, a partner in the law firm acting for the 2nd Defendant, and that the 2nd Defendant executed the lease, issued an undertaking dated 4th April 2018 to refund all monies if the premises were not ready, and received rent payments. The court framed three issues. First, it held that the supporting affidavit violated the absolute prohibition in Section 4 of the Oaths and Statutory Declarations Act against a party's advocate commissioning affidavits in the matter, rendering it null and void; following Caltex Oil and Lesrima Saimanga, it struck out the affidavit. Second, confining itself to the Plaint, it found the Plaint disclosed a reasonable cause of action against both Defendants. Third, applying Order 1 Rule 3 and D.T. Dobie, it held striking out was unwarranted; the 2nd Defendant was a necessary party. The application, being anchored on the void affidavit, was rendered incompetent and struck out, with costs to the Plaintiff.

Key legal issues

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01

Validity of affidavit commissioned by advocate acting for a party

Holding

The supporting affidavit was commissioned by Samson Nyamai Masila, a partner in the law firm acting for the 2nd Defendant; it violated Section 4 of the Oaths and Statutory Declarations Act and was struck out, rendering the application anchored on it fatally incompetent

Reasoning

The court compared the postal addresses on the affidavit's rubber stamp and the pleadings, and the LSK search confirming the commissioner practises as M/s S.N Masila & Co. Advocates. Section 4 contains an absolute prohibition on a commissioner administering oaths in a matter in which he is the advocate for a party or is interested. The defect is substantive, not procedural, and cannot be cured under Order 19 Rule 7.

p. 4
02

Whether the Plaint discloses a reasonable cause of action against the 2nd Defendant

Holding

Yes - the Plaint pleads representations and an undertaking by the 2nd Defendant to refund monies, which the Plaintiff alleges was acted upon to his detriment

Reasoning

The court confined itself to the Plaint, noting paragraphs 6 and 7 pleading the 2nd Defendant's letter of 4th April 2018 undertaking to refund all monies if the premises were not ready. The 2nd Defendant itself admitted interest in the lease in its supporting affidavit. The scope of the undertaking is a matter for plenary hearing with cross-examination, not an interlocutory mini-trial.

p. 5
03

Whether the 2nd Defendant should be struck out as a party

Holding

No - the 2nd Defendant is a necessary party properly joined under Order 1 Rule 3 of the Civil Procedure Rules

Reasoning

The Plaintiff's claim for refund of rents and special damages arises from the lease transaction involving both Defendants; joinder is proper where relief arises out of the same act or transaction and common questions of law or fact arise. Whether the Plaintiff ultimately succeeds is not a matter for interlocutory determination.

Legal principles established

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  • An affidavit sworn or commissioned before an advocate acting for a party in the matter, or concerned or interested in it, violates the absolute bar in Section 4 of the Oaths and Statutory Declarations Act and is null and void, not a mere irregularity curable by Order 19 Rule 7
  • Striking out a suit or summary dismissal is reserved for the clearest of cases; a court should aim at sustaining a suit rather than terminating it
  • In assessing whether a plaint discloses a reasonable cause of action, the court examines only the plaint/statement of claim, not the evidence

Court orders

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  1. 1.A declaration that the supporting impugned affidavit, sworn before the advocate acting for the 2nd Defendant, breached Section 4 of the Oaths and Statutory Declarations Act
  2. 2.The impugned affidavit be and is hereby struck out
  3. 3.The Notice of Motion Application dated 25th June 2021 is rendered incompetent and is struck out
  4. 4.Costs awarded to the Plaintiff

Authorities

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Legislation

  • Oaths and Statutory Declarations ActSection 4(1)
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 19 Rule 7 (referenced within quoted authorities)

Cases cited (4)

  • Caltex Oil (k) Ltd v Stadium Service Station Ltd & Another
    (2002) eKLR
  • James Francis Kariuki & Another vs. United Insurance Co Ltd
    HCCC No. 1450 of 2000
  • Lesrima Simeon Saimanga v Independent and Electoral Boundaries Commission & 2 others
    [2017] eKLR
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
Jurisdiction invoked
Original civil jurisdiction over the suit; interlocutory application under the Civil Procedure Rules (Order 1 Rule 3; Order 19 Rule 7)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "China Bente Industry (K) Ltd v Seline J Comen & another [2022] KEELC 927 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated 25th June 2021 in a suit filed by Plaint dated 7th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/927/eng@2022-03-10

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