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ELCDismissedNot stated in the judgment· [2025] KEELC 5569 (KLR)

Flexilease Limited v Mwangi & another; Kotecha (Intended Defendant) (Environment and Land Case E499 of 2024) [2025] KEELC 5569 (KLR)

High Court of Kenya
21 July 2025
MKMOHAMMED N. KULLOW
1,041 words in judgment
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The bottom line

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The High Court of Kenya dismissed a bid to strike out an application because its supporting affidavit was sworn three days before it, ruling the date error a harmless technicality.

What this practically means

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Executive summary

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This ruling by Mohammed N. Kullow, J, delivered virtually at Nairobi on 21st July 2025, determined a Notice of Motion dated 25th March 2025 brought by the 1st Defendant under Order 19 Rule 9 and Order 51 Rule 4 of the Civil Procedure Rules, 2010. The 1st Defendant sought a declaration that a Supporting Affidavit sworn by Shashikant Samji Kotecha on 18th January 2025 was fatally defective because it predated the application dated 21st January 2025 which it supported, sought its expungement from the record, and sought striking out of that substantive application (apparently for joinder of an intended 3rd Defendant) with costs. The intended 3rd Defendant opposed, characterising the date discrepancy as a mere procedural irregularity. The court framed a single issue: whether the affidavit predating the application rendered the application incurably defective. Relying on Section 5 of the Oaths and Statutory Declarations Act, Order 19 Rule 7 of the Civil Procedure Rules, and Article 159(2)(d) of the Constitution, and guided by Shah v Kenya Deposit Insurance Corporation, Bakex Millers v Esgee Industries, Dyson v Attorney General and Kabansora Flour Mills v Jambo Biscuits, the court held that the temporal discrepancy was a technicality not occasioning a miscarriage of justice. No prejudice was demonstrated, the affidavit complied with Section 5 (having been sworn before a Notary Public in the United Kingdom), and its contents were unchallenged. The motion was dismissed with costs in the cause.

Key legal issues

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Whether an affidavit sworn before the application it supports is incurably defective

Holding

No. The defect is a mere procedural technicality curable under Order 19 Rule 7 and Article 159(2)(d); striking out is not justified absent prejudice.

Reasoning

The court relied on Section 5 of the Oaths and Statutory Declarations Act, Order 19 Rule 7 of the Civil Procedure Rules allowing reception of affidavits despite irregularity of form, and Article 159(2)(d). Precedent (Kabansora Flour Mills; Bakex Millers) shows striking out should be exceptional. No prejudice was shown, the deponent's personal knowledge was unchallenged, and the affidavit's authenticity and veracity were not disputed.

p. 2

Legal principles established

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  • An affidavit sworn before the application it supports is not fatally defective; courts may receive it under Order 19 Rule 7 notwithstanding irregularity in form, absent demonstrated prejudice

Court orders

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  1. 1.The application dated 25th March, 2025 is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Civil Procedure Rules, 2010 (Order 19 Rule 9; Order 51 Rule 4) and Article 159(2)(d) of the Constitution of Kenya

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, "Flexilease Limited v Mwangi & another; Kotecha (Intended Defendant) (Environment and Land Case E499 of 2024) [2025] KEELC 5569 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5569/eng@2025-07-21

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