Kithome & another v Haile & another (Environment & Land Case E194 of 2024) [2024] KEELC 6407 (KLR)
The bottom line
#A Kenyan court struck out an injunction application because the applicants amended their supporting affidavit, something the law simply does not allow.
What this practically means
#Executive summary
#Key legal issues
#Competence of an amended supporting affidavit
An affidavit cannot be amended; the purported amendment rendered it null and void, and the application anchored on it was fatally incompetent.
Order 19 of the Civil Procedure Rules establishes that an affidavit is evidence on oath, not a pleading. While pleadings may be amended under Order 8 and Sections 99-100 of the Civil Procedure Act, affidavits do not lend themselves to amendment. Relying on Superior Homes (Kenya) PLC and Stephen Boro Githua, the court held the amended supporting affidavit was a nullity, leaving the amended application without evidential anchorage.
Prima facie case with probability of success
Applicants failed to establish a prima facie case; ownership of the distrained goods was disputed and factual controversies required plenary hearing.
Applying the Mrao and Nguruman definitions, the court found the factual matrix — ownership of the distrained chattels (contested by Snyder's Ltd and Bressly Ltd in pending objection proceedings) and alleged breach of the lease — was not straight forward and could not be resolved on the pleadings. The Applicants failed to plead with clarity so as to disclose an apparently infringed right calling for rebuttal.
Irreparable loss
No irreparable loss shown; the distrained movable property was quantified at Kshs.913,400 and thus compensable in monetary terms.
The Applicants themselves quantified the value of the attached properties in the amended plaint, conceding the loss was measurable. Citing Kenya Commercial Finance Co. Ltd v Afraha Education Society, the court held that where damages are an adequate remedy, no interlocutory injunction should issue, and that irreparable loss is what a temporary injunction must avert.
Commissioning of the replying and verifying affidavits
The objection failed; the Applicants did not prove that Boniface M. Muumbi was not an authorized commissioner for oaths.
The Respondents produced a letter dated 25th July 2024 from the Chief Registrar of the Judiciary confirming Bonface Munyao Muumbi's appointment as commissioner for oaths on 17th July 2013. Whether Bonface M Muumbi and Bonface Munyao Muumbi are the same person is a matter for plenary hearing. The Applicants, as the duty bearers, failed to prove the assertion; striking out is a draconian measure reserved for clear-cut cases.
Legal principles established
#- An affidavit is evidence on oath, not a pleading, and is not capable of amendment; a purportedly amended affidavit is a nullity.
- An application anchored on a vitiated affidavit is incompetent for want of evidential foundation.
- The party asserting that an affidavit was improperly commissioned bears the burden of proving that assertion.
Court orders
#- 1.The amended notice of motion application dated the 4th June 2024 is incompetent and same be and is hereby struck out.
- 2.The objection as to the competence of the replying affidavit and the verifying affidavit attached to the counterclaim, is misconceived and devoid of merits.
- 3.The objection as to the competence of the verifying affidavit attached to the counterclaim is dismissed.
- 4.Costs of the application be and are hereby awarded to the Defendants/Respondents.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (lease over L.R No. 209/3746, Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithome & another v Haile & another (Environment & Land Case E194 of 2024) [2024] KEELC 6407 (KLR)", Case Analysis (2024). Amended Notice of Motion dated 4th June 2024 (ELC suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6407/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.