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ELRCStruck OutPetition dated 22nd November 2019, filed 26th November 2019· [2020] KEELRC 237 (KLR)

Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others [2020] KEELRC 237 (KLR)

High Court of Kenya
19 November 2020
MOMaureen Onyango
3,527 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The High Court struck out a petition because the lawyer who filed it also swore its supporting affidavit, violating Kenyan law.

What this practically means

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Executive summary

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The petitioner, Maureen Nyambura Ngigi Warui, filed a constitutional petition dated 22nd November 2019 together with a Notice of Motion, both signed by Samuel Ndungu Advocate of D. Muriuki and Company Advocates, who also commissioned the petitioner's supporting affidavit. The 1st Respondent raised a preliminary objection that the motion and petition were incurably defective because the advocate who signed the Certificate of Urgency was the same commissioner for oaths who commissioned the supporting affidavit, contrary to the proviso to Section 4(1) of the Oaths and Statutory Declarations Act (Cap 15). The 1st Respondent relied on Caltex Oil and related authorities to argue the affidavit was a nullity, not a curable technicality; the 2nd Respondent associated itself with those submissions. The petitioner countered that the affidavit was optional under the Mutunga Rules, that striking out was a last resort, and that no prejudice or overreaching had been demonstrated. Holding that a commissioner for oaths cannot commission documents in a matter in which he acts as advocate, and that an affidavit commissioned in violation of Section 4(1) is not an affidavit at law and offends a mandatory statutory provision not curable under Article 159(2)(d), the court struck out both the motion and the affidavit. Since the petitioner relied on documents annexed to the impugned affidavit and none were annexed to the petition, the averments of fact were incapable of proof, and the petition was a hollow shell. The preliminary objection succeeded and the petition and application were struck out with costs.

Key legal issues

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01

Whether an affidavit commissioned by the advocate acting in the matter is valid

Holding

The affidavit is invalid; the proviso to Section 4(1) of the Oaths and Statutory Declarations Act bars a commissioner for oaths from commissioning documents in a matter in which he is the advocate, and such an affidavit is not an affidavit as envisaged by law

Reasoning

Samuel Ndungu was both the advocate on record who signed the pleadings and Certificate of Urgency, and the commissioner for oaths who commissioned the petitioner's affidavit. The proviso to Section 4(1) expressly prohibits commissioning in matters where the commissioner is the advocate for any party. Following Caltex Oil, such an affidavit is a nullity and offends an Act of Parliament rather than being a mere irregularity, so it cannot be saved by Article 159.

p. 2
02

Whether the defect is curable under Article 159(2)(d)

Holding

No; a violation of a mandatory statutory provision is not a mere technicality that Article 159(2)(d) can cure

Reasoning

Relying on Patricia Cherotich Sawe and Charles Muturi Mwangi, the court held that Article 159(2)(d) is not a panacea for all procedural shortfalls. Where an affidavit violates a mandatory statutory provision, the defect is substantive, not a technicality, and the affidavit must be struck out.

p. 5
03

Whether the petition could survive independently of the defective application and affidavit

Holding

No; the petition would be a hollow shell without the affidavit and its annexures, and must suffer the same fate

Reasoning

Under Rule 11 of the Mutunga Rules a petition may be supported by an affidavit and documents must be annexed to the supporting affidavit. The petition had no annexed documents; the petitioner intended to rely on the documents attached to the impugned affidavit to prove her averments of fact. Without them the petition was incapable of evidentiary proof and had to be struck out.

p. 5

Legal principles established

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  • A commissioner for oaths may not commission an affidavit in a matter in which he is the advocate for any party, and an affidavit commissioned in violation of Section 4(1) of the Oaths and Statutory Declarations Act is not an affidavit at law and is not a mere technicality curable under Article 159
  • Where a petition's averments of fact are supported only by a defective affidavit and its annexures, striking out the affidavit necessitates striking out the petition

Court orders

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  1. 1.Strike out the Notice of Motion dated 22nd November 2019 and the supporting affidavit for being bad in law
  2. 2.Strike out the petition together with the application with costs to the 1st Respondent

Authorities

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Legislation

  • Oaths and Statutory Declarations Act (Cap 15)Section 4(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 10; Rule 11
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (18)

  • Caltex Oil (Kenya) Limited v New Stadium Service Station and Another
    (2002) eKLR
  • James Francis Kariuki and Another v United Insurance Co Ltd
    HCC No. 1450 of 2000
  • Kenya Federation of Labour and Another v Attorney General & 2 Others
    Industrial Court of Kenya at Nairobi Case No 735 of 2012
  • Stephen M. Mogaka v Independent Electoral and Boundaries Commission
    [2017] eKLR
  • Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 others
    [2015] eKLR
  • Law Society of Kenya v The Centre for Human Rights and Democracy & 12 others
    Petition 14 of 2013
  • Charles Muturi Mwangi v. Invesco Assurance Co. Ltd
    [2014] eKLR
  • Jayantkumar Vrajilal Shah versus Chandulal Mchanlal Shar and another
    HCCC 1280 of 1997
  • Duncan Mwangovya versus Meena Bhangwandas Patel
    HCCC 196 of 2005
  • Justus Achinga Kebari & 25 others v The Attorney General
    [2018] eKLR
  • Isaac Aluoch Polo Aluochier v The National Alliance and 542 others
    [2016] eKLR
  • Bryson Mangla v Attorney General & Others
    Nairobi HC Petition No 284 of 2016
  • D. T. Dobie and Co. (Kenya) Limited v Joseph Mbaria Macharia
    (1980) eKLR
  • Caleb Gulam (Suing as the Executor of the Estate of Sadrudin Shamsudin Esmail Nurani) & another v Cyrus Shakhalaga Kwah Jirongo
    [2004] eKLR
  • Microsoft Corporation v Mitsumi Computer Garage Ltd & another
    [2001] eKLR
  • Geology Investments Ltd v Rogonyo Njuguna David Njuguna Peter Mwangi All T/A Turuti Service Station
    [2004] eKLR
  • Nairobi City Council v Thabiti Enterprises Limited
  • Republic v Chairman Public Procurement & another Ex-Parte Zapkass Consulting and Training Limited & another
    [2014] eKLR
Jurisdiction invoked
Article 22 and 48 of the Constitution (constitutional petition under Mutunga Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others [2020] KEELRC 237 (KLR)", Case Analysis (2020). Petition dated 22nd November 2019, filed 26th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/237/eng@2020-11-19

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