Lazaro Kabebe v Ndege Makau & Ano [2004] KEHC 1570 (KLR)

REPUBLIC  OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 1222 OF 1999

LAZARO KABEBE ……………………………………….. PLAINTIFF

VERSUS

NDEGE MAKAU

ANDERO NJAIRU MUGO ………………………… DEFENDANTS

R U L I N G

The hearing of the consolidated suit was listed before me on 10/3/04. However before the trial commenced, the parties agreed that it would be logical for the 1st and 3rd Defendants, (the applicants) to first canvass their Preliminary Objection.

By a Notice of Preliminary Objection dated 10/12/03, the said 1st and 3rd Defendants had put the Plaintiff on notice about the Preliminary Objection. This decision is thus in relation to the Preliminary Objection, which was in the following terms;

“TAKE NOTICEthat the 1st and 3rd Defendants herein will raise a preliminary objection to the hearing of these two consolidated suits and pray that the same be struck out or dismissed with costs on the following grounds:-

1. THAT the 1st suit namely HCCC No. 963 of 1997 is based on a plaint that was amended without leave of the court.

2. THAT the land which is the subject-matter of the claim in the 1st suit does not exist.

3. THAT the 2nd suit namely HCCC NO. 1222 of 1999 (O.S.) is based on a lie as can easily be gleaned from Exhibits LK3 and LK4 annexed to the Plaintiff’s affidavit dated 15th June 1999 in support of the originating summons, and secondly from Exhibits NM4 and NM5 annexed to the 1st Defendant’s affidavit in reply thereto dated 27th September 1999. 4. THAT in any event the Plaintiff’s said affidavit dated 15th June 1999 in support of his originating summons is incompetent, null and void in that it is incurably defective as it does not comply with the requirements of the Oaths and Statutory Declarations Act, Cap. 15 of the Laws of Kenya.”

I will consider each of the grounds of the preliminary objection, in turn.

1. HCCC No. 963 of 1977 Lazaro Kabebe Vs Ndege Makau & Silas Njogu Mariano was filed on 4/5/77. The court records also have an Amended Plaint which was filed in court on 16/5/91.

The applicants contend that the Plaintiff did not obtain the leave of the court to amend the Plaint. The Plaintiff concedes that the amendment was effected without the leave of the court.

Pursuant to the provisions of Order VIA rule 1 (1), the Plaint could have been amended without leave before the pleadings were closed. Once the pleadings were closed, the Plaint could only be amended with leave of the court. As the amendments were effected without the requisite leave of the court, the same are hereby struck off the record. However, the striking out of the Amended Plaint does not have any adverse impact on the Plaint which was filed on 4/5/1977. In other words, the Plaint is still validly in place, and the Plaintiff would be entitled to prosecute it. The only time when the striking out of an Amended Plaint would dispose of the suit is when the said Amended Plaint was valid; In other words, if the Amended Plaint was either filed before close of pleadings, or otherwise if it was filed with leave of the court. This preliminary objection is overruled.

2. HCCC No. 1222 of 1999 (O.S.) Lazaro Kabebe Vs Ndege Kamau & Anjelo Naibu Mugo

It is the Defendants submission that this suit was filed with an incurably defective supporting affidavit. The said affidavit is said to have failed to meet the requirements of the Oaths and Statutory Declarations Act (Cap 15) of the Laws of Kenya. In particular, it is faulted for failing to conform with the form of jurat, set out in the Third Schedule of that statute.

Rule 10 of the Oaths and Statutory Declarations Rules stipulates that the forms of jurat shall be those set out in the Third Schedule. Thereafter, the Third Schedule sets out the form, as follows;

“sworn before me Declared

This day of , 19……, at ………….. Commissioner for Oaths”.

The Plaintiff’s affidavit in this suit has the following form of jurat,

“sworn by Lazaro Kabebe on the 15th day of June, 1999, in the presence of :”

The jurat is then emborsed by the rubber stamp of the Commissioner for Oaths, Kirti Chunilal Shah, whose postal address is shown as P.O. Box 45839, Nairobi.

There is no doubt that the affidavit does not have the form of jurat set out in the Third Schedule. And for that reason, the Defendants pray that it be struck off.

I note that the main flaw in the jurat is the failure to disclose the place at which the affidavit was made. It is to be emphasized that whilst it is emborsed with a “rubber stamp” which bears the name “Nairobi” on it, that merely defines the postal address of the Commissioner for Oaths. The said reference does not in any way indicate that the Affidavit itself was sworn before the Commissioner for Oaths, when he was at Nairobi. Even if the affidavit had been sworn before the same Commissioner for Oaths when he was at Thika or Mombasa, the address of the Commissioner for Oaths would have remained the same.

The provisions of section 5 of the Oaths and Statutory Declarations Act stipulates that

“Every commissioner for Oaths before whom an oath or affidavit 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 affidavit is taken or made”.

Thus by failing to state in the jurat where the plaintiff’s affidavit was made, the said affidavit offends the provisions of Section 5. For that reason, the Defendants have asked the court to strike it out. On the other hand, the plaintiff asks me to treat the omission as a mere procedural defect, which does not invalidate the affidavit.

In the case of DB Shapriya & Co. Ltd Vs Bish International BV [2002] 1 E.A. 47 at page 49Ramadhani JA expressed himself thus;

“I have surveyed the affidavit of Kishor Shapriya and it is glaringly evident that the jurat does not disclose the place where the affidavit was made.

Admittedly, there is a rubber stamp impression of Mr. El Moamry, Learned advocate, which has “Dar-es-Salaam” on it. The rubber-stamp impression reads; “Said H. El Moamry, Advocate Notary Public and Commissioner for Oaths, Dares- Salaam”

This is on all fours with the Narok Transit Hotel Limited & Another V Barclays Bank of Kenya Ltd [2001] LLR 852 (CCK). The Learned Judge, Otieno J., found the affidavit to contravene section 5 which is in pari materia with our section 8. Professor Fimbo invited me not to be persuaded by that authority which he regarded to be bad law because it ommitted to discuss the purpose of section 5. He submitted that the purpose is authenticity that the deponent was actually sworn. According to Professor Fimbo authenticity could be achieved by the rubber stamp impression. So, to him the omission is trivial.

But as I have said above the requirements to be contained in an affidavit have all to be observed to make it authentic. Here that has not been the case. It is not for the deponent to pick and choose what is and what is not important”.

On my part, I do not think that the yardstick for determining the fate of the deficient affidavit is whether the omission is trivial or important. I also believe that it is sufficient for the court to take cognizance of the fact that it is a requirement of the substantive statute. Parties ought therefore to accept it as such, whether they deem it to be trivial or important. In the DB Shapriya case(supra), Ramadhani JA upheld the preliminary objection against the use of the defective affidavit. The law report did however not indicate whether the application itself was either struck out or dismissed by Ramadhani JA.

In the case of Amira (K) Ltd V National Irrigation Board [2001] 2 E A 333, Mwera J. declined to strike out a Plaint that was supported by a verifying affidavit which did not state, in the jurat, where the affidavit had been sworn. He granted leave to the Plaintiff to rectify the verifying affidavit.

In this case, the Plaintiff relied heavily on the decision by Ringera J. in HCCC No. (Milimani) 1759 of 1999 Tom Okello Odongo V National Social Security Fund. In that case the court expressed itself thus;

“Speaking for myself, I am in respectful agreement with Commissioner Visram, that by virtue of Order XVIII rule 7 of the Civil Procedure Rules, the Court has discretion to overlook any irregularity in the form of jurat of an affidavit filed in any proceedings before it. The words of the rule are plain enough. This view of the matter is fortified, if fortification is necessary, by what the learned editors of Halbury’s Laws of England, 3rd edition, volume 15, state in paragraph 847. Citing authority, they propounded that:

‘The parties cannot waive irregularities in the form of a jurat, but where the place of swearing is omitted, the court may possibly assume that the place was within the area in which the notary before whom it was taken was certified to have jurisdiction and the irregularity, may be overlooked’

From the above commentary, it would appear as if the mischief sought to be cured by the rule in England was the need to state the place where an affidavit was taken, was the possibility of taking of affidavits by commissioners or notaries outside their area of jurisdiction. That sort of mischief would not appear to be real in a case such as the present one where the affidavit is clearly taken in Kenya by a Kenyan Commissioner of Oaths, for the reason that Section 4 (1) of the Oaths and Statutory Declarations Act empowers a Commissioner for Oaths to administer an oath or take an affidavit in any part of Kenya”.

I find the reasoning of Ringera J. to be wholly sound, and I do adopt it herein. I therefore conclude that whereas the omission in the jurat is obvious, the same is not fatal. I do accept the affidavit pursuant to the discretionary power donated to this court by the provisions of Order XVIII rule 7. Thus, notwithstanding the defect in the jurat, I do receive the affidavit of the Plaintiff, for use in this suit. I have decided to exercise my discretion in this manner as I hold the considered view that the acceptance of the affidavit does not occasion any prejudice to the Defendants. And whereas, I may in some instances be more inclined to direct that the affidavit be resworn and filed within a stipulated period of time, I think that in the circumstances of these old cases, in which the defendants only raised the preliminary objection at the eleventh hour, it is best that no more time be lost. One case was filed in 1977, and the second one in 1999. And after the parties had agreed on the Statement of Issues to be placed before the trial court, and when the trial was set to commence in December 2003, the Defendants raised this preliminary Objection. I do not think that the timing of the said Preliminary Objection speaks favourably of the Defendants’ desire to have the cases proceed expeditiously. This preliminary objection is overruled.

3. Subject matter non-existent (?) The Defendants have asserted that the land which is the subject matter in HCCC No. 963 of 1977 Lazaro & Silas Njogu Vs Ndege Makau & Silas Njogu Mariano does not exist.

However, much as that Preliminary Objection was cited by the Defendants, they did not canvass the point before the court. The said preliminary objection is thus overruled.

4. HCCC No. 1222 of 1999 (O.S.) Lazaro Kabebe V Ndege Makau & Anjelo N. Mugo “is based on a lie”

In order to advance his submissions to support this preliminary objection, the Defendants counsel, Mr. Ngare, said that the Plaintiff had not been on the suit property for an uninterrupted period of 12 years. He then started narrating the history of the Plaintiff’s occupation, in an endeavour to make his point. However, Mr. Ndege, advocate for the Plaintiff raised an objection to that line of submissions. He said that the Defendant’s advocate was precluded from adducing evidence from the bar. He emphasized that it was not permissible for evidence to be led on an issue that was raised as a preliminary objection, because the proper place at which evidence ought to be given was at the trial.

The Defendants advocate insisted that he was entitled to put forth, before the court, such material as was necessary.

He contended that his right to put forward such material was founded upon the fact that he was an officer of the court.

At that point in time, I did make a Ruling on the following terms;

“A preliminary Objection ought to be founded strictly on the law or material which is apparent on the face of the record.It would be improper for any party raising a preliminary objection to seek to adduce evidence before the court. Therefore the objection by the Plaintiff is upheld.The Defendants are directed to limit their preliminary objection accordingly”.

I then invited the Defendants advocate to proceed with his preliminary objection, within the limits set out in my ruling.

However, he then indicated that he had finalized his said preliminary objection.

In my considered opinion, the defendants did not make out any substantive material upon which the court could determine whether or not this originating summons was based on a lie. Therefore this preliminary objection is overruled. Conclusion

Accordingly, I have overruled all the four (4) grounds of preliminary objection that were raised by the Defendants. The Plaintiff shall have the costs of the said Preliminary Objections.

The parties are hereby directed to make haste in setting down for trial, these consolidated suits. And the Registry is requested to facilitate an expeditious disposal of the suits, by allocating hearing dates on a priority basis.

Dated at Nairobi this 22nd day of April 2004.

FRED A. OCHIENG

Ag. JUDGE