Tsuma & another v Said

the respondents led a replying adavit dated 4 November 2022 (the impugned adavit). A perusal of the impugned adavit reveals that the 1st Respondent narrated how the applicants came to be in possession of the suit property. It is also clear that there is included a counter-claim therein in which the 1st respondent seeks an eviction order against the applicants. 4. The application was canvassed by way of written submissions. Applicants’ submissions 5. Counsel submitted that the objection has nothing to do with the form of the impugned adavit but the substance. That as framed, the impugned adavit oends the best evidence rule set out pin order 19 Rule 3 of the Rules which provides that adavits shall be conned to such facts as the deponent is able to prove. To counsel the same is therefore argumentative and ought to be struck out under order 19 rule 6 of the Rules. To buttress this issue, counsel relied on the case of Cammille v Meralli [1966] EA 411, Mayers & another v Akira Ranch Ltd [1974] EA 169 as cited in Mbugua & Mbugua Advocates v Kenindia Assurance Co Ltd [2014] eKLR. 6. Counsel further submitted that the impugned adavit tends to join a third party to an existing suit without leave of the court contrary to order 1 rule 10. For the above reason, counsel argued that the impugned adavit is incompetent unable to be cured by the provisions of article 159 (2)(d) of the Constitution of Kenya and sections 1A and 1B of the Civil Procedure Act. Counsel relied on the cases of Maimai Hamisi v Persi Pesi Tobiko & 2 others CA 154/2014; Mumo Matemu v Trusted Society of Human Rights Alliance and others CA 290/2013; Shabbir Ali Jusab v Annar Osman Gamrai and another [2013] eKLR as cited in Raila Amollo Odinga v IEBC and 4 others Supreme Court Petition No. 5 of 2013. Respondents’ Submissions 7. Counsel identied three issues for determination. Firstly, whether the impugned adavit oends the provisions of order 19 rule 3. Regarding this issue, counsel submitted that the Applicants’ allegations that the impugned adavit contains no factual averments but only arguments and opinions was misleading and that the correct position is that the said adavit raises concise facts backed by evidence. 8. Secondly, counsel discussed whether the respondent is allowed to le a counter-claim as he did, in a situation where the suit is commenced by way of originating summons. According to him, an originating summons is a pleading as dened under section 2 of the Civil Procedure Act and as such the counter-claim is properly included in the replying adavit. Counsel added that in any case directions were yet to be issued as to the hearing of the suit, as such the court could order that the Originating Summons be converted into a plaint as envisaged under order 37 rule 19. To buttress this point Counsel relied on the case of Emily Chepkor Chepkwony v Paul Arap Chandoek [2021] eKLR. 9. The respondent’s last issue was whether leave of the court is required when adding a new defendant to a suit. Counsel argued that by virtue of order 7 rule 8 of the Rules, there is no requirement for a defendant to seek leave of the court prior to introducing another defendant by way of counterclaim. 10. I have carefully considered the arguments made by the parties herein. The issue for determination is whether the replying adavit dated 4 November 2022 should be struck out for the reasons that it contains a counter-claim and is argumentative. 11. The provisions of order 19 rule 3 of the Rules are as follows; 1. Adavits shall be conned to such facts as the deponent is able of his own knowledge to prove: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22193/eng@2023-12-14 2

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Provided that in interlocutory proceedings, or by leave of the court, an adavit may contain statements of information and belief showing the sources and grounds thereof. 2. The costs of every adavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party ling the same. 12. Order 19 rule 6 further provides that the court may order to be struck out from any adavit any matter which is scandalous, irrelevant or oppressive. 13. I have perused the impugned replying adavit sworn by the 1st Respondent. He states therein that the matters he has deposed to are within his knowledge and best belief and sources to which he disclosed. It is also evident that the said adavit contains a whole counter-claim and an additional party, which to me is quite unusual as the whole purpose of an adavit as provided in Order 19 rule 1 of the Rules is to provide evidence. Rule 3 sub-rule 1 above is also clear that an adavit shall be conned to facts as the deponent is able of his own knowledge to prove. The only limitation that applies as stated by order 19 rule 6 of the Rules is that the matters in an adavit should not be scandalous, oppressive or irrelevant. 14. For the above reasons and by dint of order 19 rule 6 above, this court is of the view that the counterclaim as framed is misplaced. The 1st Respondent ought to have simply stated the contents therein without having to include the counter-claim. In any event, the contents of the counter-claim mirror those he outlined in the rst phase of the impugned replying adavit. 15. The upshot is that the purported counter-claim, contained in paragraphs 29-48 of the replying adavit, is hereby struck out and expunged from the court record. Having said so, there is therefore no need to determine whether the new party, 3rd defendant in the said counterclaim, was rightfully joined. 16. The application dated 22/11/2022 therefore partially succeeds and the costs thereof are hereby awarded to the applicant. The matter shall be mentioned on 28/2/24. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 14TH DAY OF DECEMBER 2023. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22193/eng@2023-12-14 3

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