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ELCDismissedEnvironment & Land Miscellaneous Case E135 of 2022· [2022] KEELC 13504 (KLR)

Kariuki & another v Nyotta & another

Environment and Land Court
6 October 2022
4,350 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a company dispute application because affidavit exhibits were not properly sealed, and confirmed subsisting orders still authorized the applicant to act for the company.

What this practically means

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Executive summary

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The 2nd applicant, Bebadis Company Limited, moved the court by notice of motion dated September 23, 2022 seeking to bar the 1st applicant, Daniel Kimani Kariuki, from acting for the company and to strike out pleadings he had filed on its behalf, contending he ceased to be a director on September 4, 2018 and that Silvia Wambui Karanja was the sole director. The 1st applicant and the respondents filed no formal responses. The court framed two issues: compliance of the supporting affidavit's annextures with rule 9 of the Oaths and Statutory Declarations Rules, and the 1st applicant's authority to act for the company. On the first issue, the court found the commissioner's seal had been affixed to a separate sheet of paper rather than securely sealed onto the annextures, rendering them invalid and devoid of probative value; they were expunged, along with paragraphs 2, 7, 15, 18, 21 and 24 of the affidavit. On the second issue, the court reproduced orders issued by Lady Justice Mary Kasango on November 21, 2018 in Milimani HCC E115 of 2018, which permitted the 1st applicant to run the business and affairs of the company. Since counsel admitted that suit remained pending and the orders had not been set aside, the court held the 1st applicant remained authorized to sign and file pleadings for the company. The application was dismissed with costs to the 1st applicant.

Key legal issues

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01

Compliance of annextures with rule 9 of the Oaths and Statutory Declarations Rules

Holding

The annextures were not securely sealed with the commissioner's seal; the seal was affixed on a separate piece of paper preceding the annextures. They were incompetent, invalid and devoid of probative value and were expunged, together with the paragraphs referencing them.

Reasoning

Rule 9 requires exhibits to be securely sealed under the commissioner's seal and marked with serial letters of identification. The purpose is identification and authentication, preventing substitution of documents. Affixing the seal on a separate sheet defeats this purpose. The court held the rule obligatory, rejecting the 'neatness' justification, and relied on Abraham Mwangi v S O Omboo and Solomon Omwega Omache to reject loose exhibits.

p. 4
02

Whether the 1st applicant is authorized to act for the 2nd applicant

Holding

Yes. The orders of November 21, 2018 in Milimani HCC E115 of 2018 remain operative and authorize the 1st applicant to run the business and affairs of the 2nd applicant, and thus to sign and file pleadings on its behalf.

Reasoning

Counsel for the 2nd applicant admitted the underlying suit was still pending, so the orders remained in existence. The court read the orders as clear and explicit: the 1st applicant is the sole person permitted to run the business of the company. Since the orders had not been reviewed, varied or discharged, they bind all parties, and his capacity persists until they are set aside.

p. 8
03

Competence of the application itself

Holding

The application dated September 23, 2022, supported by an affidavit sworn August 19, 2022 (which predates it), was incompetent because its supporting affidavit and annextures were invalid.

Reasoning

With the annextures and key paragraphs expunged, there was no credible basis for the deponent's claim to be the sole legitimate director of the 2nd applicant. The allegations stood in a vacuum, rendering the application incompetent and, in any event, devoid of merit.

p. 5

Legal principles established

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  • Exhibits to affidavits must be securely sealed thereto under the commissioner's seal and marked with serial letters of identification; unsealed annextures are invalid and devoid of probative value
  • Compliance with rules of procedure is mandatory and not antithetical to Article 159 of the Constitution or the overriding objective
  • Court orders must be complied with until lawfully vacated, varied or discharged

Court orders

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  1. 1.The annextures attached to the supporting affidavit sworn on August 19, 2022 are expunged for want of compliance with rule 9 of the Oaths and Statutory Declarations Rules
  2. 2.Paragraphs 2, 7, 15, 18, 21 and 24 of the supporting affidavit sworn on August 19, 2022 are expunged
  3. 3.The notice of motion application dated September 23, 2022 is dismissed with costs to the 1st applicant

Authorities

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Legislation

  • Oaths and Statutory Declarations Rulesrule 9
  • Constitution of Kenya, 2010article 159(2)(d)
  • Civil Procedure Actsections 1A and 1B
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (4)

  • Abraham Mwangi v S O Omboo & others
    HCCC No 1511 of 2002

    Exhibits to affidavits which are loose fly sheets without exhibit marks must be rejected

  • Solomon Omwega Omache & another v Zachary O Ayieko & 2 others
    [2016] eKLR

    Court's duty to uphold sanctity of record; unsealed annextures expunged, rendering affidavit incomplete and valueless

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    Civil Appeal No 290 of 2012

    Compliance with rules of procedure is not antithetical to article 159 or the overriding objective

  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    (2013) eKLR

    A court order is a directive that must be complied with; defiance is not an option

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over a miscellaneous application concerning company pleadings filed in land-related proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kariuki & another v Nyotta & another", Case Analysis (2022). Environment & Land Miscellaneous Case E135 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13504/eng@2022-10-06

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