Kariuki & another v Nyotta & another
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance of annextures with rule 9 of the Oaths and Statutory Declarations Rules
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.
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.
Whether the 1st applicant is authorized to act for the 2nd applicant
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.
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.
Competence of the application itself
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.
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.
Legal principles established
#- 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
#- 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.Paragraphs 2, 7, 15, 18, 21 and 24 of the supporting affidavit sworn on August 19, 2022 are expunged
- 3.The notice of motion application dated September 23, 2022 is dismissed with costs to the 1st applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.