Gitau v Njuguna & 4 others

of the 3rd defendant that commissioning of the verifying and the supporting adavits by Anita W Njoroge is a fatal violation of the requirements of section 4(1) of the Oaths and Statutory Declarations Act, chapter 15 of the Laws of Kenya. 3. The 3rd defendant further contends that the supporting adavit dated 15/5/2023 oends the requirements of order 19 rule 5 of the Civil Procedure Rules because the said adavit was not numbered consecutively. It is the case of the 3rd defendant that the said adavit contains paragraphs 1 to 14 and 16 to 17 but does not contain paragraph 15. 4. The 3rd defendant adds that the replying adavit sworn on 6/6/2023 by the 1st defendant [Boniface Ndirangu Njuguna] should be struck out on the ground that it was commissioned by Anita W Njoroge who practices law in the rm of Mbiyu Kamau & Company Advocates who are on record for the plainti in this suit. It is the case of the 3rd defendant that the said replying adavits violates the mandatory requirements of section 4(1) of the Oaths and Statutory Provisions Act. 5. I have considered the application dated 29/6/2023. Four issues emerge for determination in the said application. The rst issue is whether the plainti’s suit is fatally defective by dint of the fact that the verifying adavit which accompanied the plaint was commissioned by an advocate practising in the rm of Mbiyu Kamau & Company Advocates who act for the plainti in this suit. The second issue is whether the plainti’s notice of motion dated 15/5/2023 is fatally defective by dint of the fact that the adavit in support of the notice of motion was commissioned by an advocate practising in the rm of Mbiyu Kamau & Company Advocates who act for the plaintis in this suit. The third issue is whether the 1st defendant’s replying adavit dated 6/6/2023 is fatally defective by dint of the fact that it was commissioned by an advocate practising in the rm of Mbiyu Kamau & Company Advocates. The last issue is whether the notice of motion dated 15/5/2023 is fatally defective by dint of the fact that the supporting adavit is not numbered consecutively. 6. The rst, second and third issues raise the question of legality of the three adavits that were commissioned by Anita W Njoroge who is alleged to be practising law in the rm of Mbiyu Kamau & Company Advocates. The three issues will, in the circumstances, be disposed simultaneously. 7. The applicant exhibited a print-out from the Law Society of Kenya public online portal showing that Njoroge Anita Wangui P.105/15990/19 was an active advocate in 2023 and practised law in the rm of Mbiyu Kamau & Company Advocates of P. O. Box 1287 Thika. The above evidence has not been controverted. 8. Section 4(1) of the Oaths and Statutory Declarations Act which the 3rd defendant invokes provides as follows: “ (1) A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any adavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court: Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22366/eng@2023-12-13 2

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9. It is clear from the proviso in Section 4(1) of the Oaths and Statutory Declarations Act that an advocate who is acting for a party in proceedings before a court of law is expressly prohibited against commissioning adavits that are to be led in the proceedings. Indeed, a reading of the prevailing jurisprudence on the subject indicates that adavits that have been commissioned in violation of the above law have suered the fate of being struck out. [See: (i) Kenya Federation of Labour and another v Attorney General & 2 others Industrial Court of Kenya at Nairobi Case No 735 of 2012]; and (ii) Lee Njiru v J. K Lokorio & another [2019] eKLR.] 10. Regrettably, the 3rd defendant having demonstrated that Anita W. Njoroge who commissioned the three adavits is an advocate practising in the rm of Mbiyu Kamau & Company Advocates, the three adavits stand to be struck out. They are hereby struck out. What are the ramications of the striking out order? 11. Under order 4 rule 1(6) of the Civil Procedure Rules, a plaint or counter-claim which is not accompanied with a verifying adavit is fatally defective and is liable to be struck out. That is the fate which befalls the plaint dated 15/5/2023. 12. As for the notice of motion dated 15/5/2023, the striking out of a supporting adavit does not necessary render an application incompetent. If the application is one that can be properly canvassed without evidence, the application would proceed to hearing and would be disposed on its merits. Where the application raises factual issues that require proof through adavit evidence, it suers fatal incompetence. 13. The application dated 15/5/2023 is a plea for an interlocutory injunctive order. It is denitely an application that requires supporting evidence demonstrating, among other elements, a prima facie case with the probability of success. Consequently, without a supporting adavit, the application is fatally incompetent and ought to be struck out. 14. The court’s view on the plainti’s failure to consecutively number the paragraphs in the adavit is that, omission of a number may be a genuine typographical error. Where it is demonstrated that indeed the omission is a typographical error, the error does not attract an order striking out a suit or an application. 15. For the above reasons, it is the nding of this court that the plainti’s suit is fatally defective. The suit is accordingly struck out. The application dated 15/5/2023 is similarly struck out alongside the main suit for the same reasons. For avoidance of doubt, given that the substantive dispute and the plea for interlocutory reliefs have not been disposed on merits, the plainti will be at liberty to bring a competent suit and a competent application to ventilate his claim. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 13TH DAY OF DECEMBER 2023 B M EBOSO JUDGE In the presence of: Mr Mugo holding brief for Mbiyu Kamau for the Plainti Mr Mathenge for the 1st Defendant Ms Kiiru for the 2nd Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22366/eng@2023-12-13 3

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