Hatari Security Guard Limited v Kahihi (Miscellaneous Application E001 of 2024) [2024] KEELRC 598 (KLR)
The bottom line
#A Kenyan court struck out an entire application because the lawyer swore and commissioned his own supporting affidavit, which the law forbids.
What this practically means
#Executive summary
#Key legal issues
#Whether the supporting affidavit sworn and commissioned by the applicant's own advocate renders the motion fatally defective
Yes. Section 4(1) of the Oaths and Statutory Declarations Act is mandatory and prohibits an advocate from exercising the powers of a commissioner for oaths in a matter in which he is the advocate for a party; the affidavit was struck out together with the motion
The court noted the emerging jurisprudence that affidavits commissioned by counsel representing the deponent are fatally defective, citing two authorities where petitions were struck out on that ground. Here matters were worse because the advocate swore and commissioned his own affidavit. The court held the statutory prohibition is couched in mandatory terms and the defect could not be cured by the advocate's concession of his mistake.
Whether leave to appeal out of time and stay of execution were merited
Not determined, as the entire application was struck out on the jurisdictional defect of the supporting affidavit
Although the applicant explained the 25-day delay by reference to the Christmas closure of his law firm and delays in obtaining typed proceedings, and offered to deposit 50% of the decreed sum as security, the court never reached the merits of the extension and stay prayers because the defective affidavit deprived the motion of support.
Legal principles established
#- An affidavit made in contravention of Section 4 of the Oaths and Statutory Declarations Act, where the advocate acting in the matter swears or commissions the affidavit, is fatally defective and the application it supports must fail
Court orders
#- 1.Striking out the Supporting Affidavit sworn by Gerald Kiti on 15th February 2024
- 2.Striking out the Notice of Motion dated 15th February 2024
- 3.Costs of the application to the Respondent
- Jurisdiction invoked
- Article 159(2) and 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hatari Security Guard Limited v Kahihi (Miscellaneous Application E001 of 2024) [2024] KEELRC 598 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/598/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.