Lee Njiru v J.K. Lokorio & another [2019] KEELRC 371 (KLR)
The bottom line
#A Kenyan court struck out an entire lawsuit because the affidavit supporting it was commissioned by a lawyer from the claimant's own firm.
What this practically means
#Executive summary
#Key legal issues
#Whether a Verifying Affidavit commissioned by an advocate from the same law firm acting for the claimant contravenes section 4(1) of the Oaths and Statutory Declarations Act
Yes - the affidavit is defective and the commissioning advocate was unauthorised to commission it
Section 4(1) of the Oaths and Statutory Declarations Act prohibits a Commissioner for Oaths from exercising his powers in any proceeding in which he is the advocate for any party or in which he is interested. A court search confirmed Ndeke Gatumu was an active practitioner in Seth & Wathigo Advocates, the firm on record for the claimant. The provisions are mandatory, and the objection was not disputed in any material way.
Whether Article 159(2)(d) of the Constitution (justice without undue regard to technicalities) cures the defective Verifying Affidavit
No - the defect is incurable and Article 159 does not apply
Relying on Nicholas Kiptoo Arap Korir Salat v IEBC and James Mangeli Musoo v Ezeetec Limited, the court held that Article 159 was never meant to overthrow rules of procedure or aid parties who disregard them. The commissioning of the affidavit offended a mandatory statutory proviso, which is not a mere technicality but a substantive statutory prohibition that cannot be circumvented.
What consequence follows from striking out the defective Verifying Affidavit
The plaint is left without a foundation and the entire suit is struck out
Order 4 Rule 1(6) of the Civil Procedure Rules permits the court, on its own motion or on application, to strike out a plaint that does not comply with the requirement of a Verifying Affidavit. The discretion, though discretionary ('may'), was properly exercised because the suit was left without a foundation once the affidavit was expunged.
Legal principles established
#- A Commissioner for Oaths who is an advocate in the law firm representing a party cannot commission documents in that party's proceedings; section 4(1) of the Oaths and Statutory Declarations Act is mandatory
- A Verifying Affidavit commissioned by an advocate practising in the firm acting for the claimant is incurably defective and cannot be saved by Article 159(2)(d) of the Constitution
- Rules of procedure, being subsidiary legislation, cannot override the mandatory provisions of a statute
Court orders
#- 1.The Verifying Affidavit in support of the claim is struck out and expunged from the court records
- 2.The suit is struck out
- 3.Each party shall pay own costs
- Jurisdiction invoked
- Suit transferred to this court by the High Court, Nakuru, following a finding that the High Court had no jurisdiction (Ruling of 11 July 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lee Njiru v J.K. Lokorio & another [2019] KEELRC 371 (KLR)", Case Analysis (2019). Nakuru HCC No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/371/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.