Flexilease Limited v Mwangi & another; Kotecha (Intended Defendant) (Environment and Land Case E499 of 2024) [2025] KEELC 5569 (KLR)

Issues for Determination 4. From the foregoing the court is called upon to determine: Whether the supporting afidavit sworn on 18th January, 2025, in support of the application dated 21st January, 2025, renders the application incurably defective and liable to be struck out. Analysis and Determination 5. The core of the 1st Defendant’s objection is that the afidavit predates the application it supports. They argue this temporal sequence is procedurally fiawed and undermines the validity of the substantive application. 6. This Court is, however, guided by both statutory provisions and judicial precedent which squarely address this issue. 7. The law governing afidavits is the Oaths and Statutory Declarations Act. Section 5 provides: “ Every commissioner for oaths before whom any oath or afidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or afidavit is taken or made.” 8. In addressing the purpose of and Afidavit the court in: Shah & another v Kenya Deposit Insurance Corporation & another (Constitutional Petition E203 of 2021) [2023] KEHC 485 (KLR) (Constitutional and Human Rights) (27 January 2023) (Ruling) stated at paragraph 33: “ The question on the table is whether the fact that the afidavit is dated before the Petition in support of which it was filed, renders the Petition fatally defective. To answer this question posed, it is necessary to consider the purpose of an afidavit. Every afidavit sworn presents facts which are within the knowledge of the deponent and those that are not, the source thereof must be indicated. It is for this reason that every afidavit must be expressed in the first person whether singular or plural.” 9. The guiding principle is further reinforced by Order 19 Rule 7 of the Civil Procedure Rules which provides: “ The court may receive any afidavit sworn for the purpose of being used in any suit notwithstanding any defect of misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.” 10. Moreover, Article 159(2)(d) of the Constitution of Kenya directs courts to administer justice without undue regard to procedural technicalities. This Court is enjoined to do substantive justice to all parties and a party ought not be driven from the seat of justice on a mere technicality as a date. In this regard, I adopt the following sentiments expressed by Kimondo, J. in the case of Bakex Millers Limited v Esgee Industries Limited [2014] eKLR: “Ideally, cases should be determined on tested evidence at a full hearing. Striking out a pleading should thus be an exception and not the norm. The bottom line cannot be better set than in the words of Fletcher Moulton L.J. in Dyson Vs. Attorney General [1911] 1 KB 410 at 418 when he delivered himself thus; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5569/eng@2025-07-21 2

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“To my mind, it is evident that our judicial system would never permit a plaintifi to be driven from the judgment seat in this way without any court having considered his right to be heard except in cases where the cause of action was obviously and almost incontestably bad” 11. Similarly, In Kabansora Flour Mills Ltd v. Jambo Biscuits Ltd [2004] eKLR, the court rejected a similar objection to an afidavit sworn before the corresponding application. It held: “ ………. I believe that the attempt to strike out an afidavit whose date is prior to the application is no more than a feeble attempt at attacking the said afidavit. But if I should be wrong on that score, and if indeed the afidavit were to be deemed defective, ………………” 12. Importantly, it has not been stated that the deponents of the said afidavit deponed to facts that were not within their personal knowledge. It has also not been demonstrated that the afidavit being dated before the application has caused any prejudice to the 1stDefendant or afiected the fairness of proceedings. 13. This Court finds that the date discrepancy, though noted, does not occasion a miscarriage of justice or rise to the level of fatality. The application remains capable of being fairly and efiectively adjudicated on its merits. 14. The afidavit dated 18th January, 2025 was sworn before a Notary Public in the United Kingdom. It complies with Section 5 of the Act, which governs the commissioning of afidavits. The supporting afidavit introduces facts in support of an application filed three days later. No prejudice has been demonstrated, nor has the authenticity or veracity of the contents been challenged. Conclusion 15. The objection by the 1st Defendant is a technical one, and while it raises a valid procedural point, it does not justify the drastic remedy of striking out the afidavit or the substantive application. Courts have moved away from technical formalism, especially where no prejudice is sufiered and the rules permit curative discretion. 16. Accordingly, I find that the application dated 25th March, 2025 lacks merit and is hereby dismissed Costs shall be in the cause. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF JULY, 2025. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Amwama for the Plaintifi Mr. Buluma for the Defendants Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5569/eng@2025-07-21 3

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