Ali v Bika & 2 others
The bottom line
#Kenya's Environment and Land Court threw out a late application because the lawyer's affidavit raised disputed facts, which only a client can swear to.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate may swear a supporting affidavit containing contentious matters of fact
The court upheld the preliminary objection, finding the supporting affidavit raised contentious issues beyond formal, non-contentious matters permitted under Rule 9 of the Advocates (Practice) Rules, and dismissed the application founded on it.
The plaintiff objected that the affidavit sworn by Muthomi Njuki, an advocate in the firm acting for the 3rd defendant, raised contentious matters - notably the plaintiff's opposition to production of new documents after parties had testified and closed their cases. The court agreed these were not formal or non-contentious facts within the advocate's personal knowledge, distinguishing the authority relied on by the 3rd defendant. The application was therefore dismissed and the suit directed to proceed.
Timing of the application - whether filing documents after parties had testified was an afterthought
The court noted the application was filed very late, after the plaintiff, 1st and 2nd defendants had testified and closed their cases, and observed it could be seen as an afterthought, though it decided the matter on the affidavit defect.
The court observed that the impugned application was filed after the plaintiff and the 1st and 2nd defendants had testified and closed their cases, and that it was filed very late in the day, such that one could be excused for feeling it was an afterthought. However, the dismissal rested on the affidavit defect rather than the lateness alone.
Legal principles established
#- An affidavit sworn by an advocate on contentious matters (as opposed to formal, non-contentious facts within the advocate's personal knowledge) is defective and cannot support an application
- No two cases are identical; the totality of facts and circumstances of each case must be considered before a court decides
Court orders
#- 1.The Notice of Preliminary Objection dated 5th July 2023 filed by the Plaintiff is upheld
- 2.The 3rd defendant's Notice of Motion Application dated 2nd May 2023 is dismissed
- 3.Hearing of the Main Suit to proceed to its conclusion
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Bika & 2 others", Case Analysis (2023). Environment & Land Case 002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21963/eng@2023-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.