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ELRCStruck OutPetition No 5 of 2018· [2018] KEELRC 728 (KLR)

Peter Ndiritu Gitahi & 60 others v Attorney General [2018] KEELRC 728 (KLR)

Employment & Labour Relations Court
31 October 2018
NMNzioki wa Makau
1,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out 61 ex-servicemen's petition because their own advocate had commissioned their affidavits, which the law forbids.

What this practically means

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Executive summary

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The 61 Petitioners, former servicemen in the Armed Forces, filed a constitutional petition seeking relief against the Respondent for acts allegedly perpetrated against them by state agencies. The Respondent, through a supporting affidavit of a State Counsel at Kenya Defence Headquarters, moved to strike out the supporting affidavits and consequently the Petition, contending that the affidavits were attested by the advocate who drew the Petition contrary to Section 4(1) of the Oaths and Statutory Declarations Act, and that the Petition offended Section 12 of the Government Proceedings Act and Order 1 Rule 11 of the Civil Procedure Rules. The Petitioners opposed the motion by notice of preliminary objection, arguing inter alia that the deponent was not competent to swear an affidavit on behalf of the Defence authorities and that counsel lacked written authority. The court held that the objections based on Section 12 of the Government Proceedings Act and Order 1 Rule 11 were misplaced since the Petitioners had correctly sued the Attorney General. However, on the commissioning issue, the court found that the Petitioners' advocate, whose firm was on record, had himself commissioned the supporting affidavits, which was untenable in law. Following Caltex Oil (Kenya) Ltd v New Stadium Station Ltd, the court held that such a breach of Section 4(1) is not a mere irregularity curable by refiling. The Petition was declared dead on arrival at the Court Registry in Nyeri, invalid, void and of no effect, was struck out, with no order as to costs.

Key legal issues

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01

Effect of an advocate commissioning affidavits for his own client

Holding

The affidavits are invalid and the Petition stands unsupported by evidence; the defect is substantive, not a curable irregularity

Reasoning

The court found the jurat stamp was that of Mr. Ojwang'Agina, Commissioner for Oaths, while the firm on record was Agina & Associates Advocates. Relying on Caltex Oil (Kenya) Ltd v New Stadium Station Ltd, the court held that breach of Section 4(1) of the Oaths and Statutory Declarations Act renders such an affidavit not an affidavit in law, incapable of reception, and that the defect cannot be cured by filing another affidavit. The Petition was therefore struck out.

p. 2
02

Correct party to sue under Section 12 of the Government Proceedings Act

Holding

The attack was misplaced because the Petitioners correctly sued the Attorney General

Reasoning

Section 12 requires proceedings against the Government to be commenced against the Attorney General. The Petitioners did exactly that; they did not sue the Department of Defence, the Cabinet Secretary for Defence or the Armed Forces, so the Petition was not defective on this ground. Similarly, the objection based on Order 1 Rule 11 of the Civil Procedure Rules was found to be without merit.

p. 2

Legal principles established

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  • An affidavit sworn and commissioned by the advocate acting for the party on whose behalf it is filed contravenes Section 4(1) of the Oaths and Statutory Declarations Act and is not a mere irregularity of form

Court orders

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  1. 1.The Petition is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Oaths and Statutory Declarations ActSection 4(1)
  • Government Proceedings ActSection 12
  • Civil Procedure RulesOrder 1 Rule 11
  • Civil Procedure RulesOrder 18 Rule 7
  • Employment & Labour Relations Court (Procedure) Rules 2016
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices & Procedure Rules 2013

Cases cited (2)

  • Caltex Oil (Kenya) Ltd v New Stadium Station Ltd & Another
    [2002] eKLR
  • James Francis Kariuki & Another vs. United Insurance Co Ltd
    HCCC No. 1450 of 2000
Jurisdiction invoked
Constitutional petition for relief against state agencies; proceedings governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practices & Procedure Rules 2013 (as invoked by the parties)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Ndiritu Gitahi & 60 others v Attorney General [2018] KEELRC 728 (KLR)", Case Analysis (2018). Petition No 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/728/eng@2018-10-31

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