Moses Mokoit v Defence Council & Attorney General [2018] KEHC 770 (KLR)

REPUBLIC OF KENYA

IN THE  HIGH COURT OF KENYA AT KITALE

PETITION NO.  17 OF 2013

(Formerly Nairobi HC Petition  No. 383 of 2008)

MOSES MOKOIT.........................................................APPLICANT

VERSUS

THE DEFENCE COUNCIL............................1ST RESPONDENT

ATTORNEY GENERAL................................2ND RESPONDENT

R U L I N G

1. The notice of motion dated 12/6/2009 seeks to strike out the petition herein.  The same is supported by the affidavit  of   Brigadier Francis Maina Murgor sworn on 25/2/2009.   The substance of the said motion is the attached affidavit,  annexture FMMI by the petitioner disowning this petition.

2. The petitioner on the  other hand  vide his replying affidavit dated 5/3/2018 denied  the same.  I have equally perused the grounds of opposition dated 1/03/2018.

3. Without delving into the details of the annextures and specifically whether the petitioner recanted his affidavit and the entire petition, I find that the issue is so  weighty that the same cannot be simply  decided by way of affidavits.

4. The proper recourse is to have this petition determined fully by way of oral evidence.  Should one of the issues raised in  recanting of the petition then evidence  should be  led to that effect.

5. It is premature in  my view to have the petition simply struck out based on some contested facts especially   based on oath. Striking out is of course one of the measures provided where the suit is hopeless and on the face of it unmeritorious.

6. The notice of motion is therefore dismissed.  The costs shall abide the outcome of the petition.

Delivered, signed and dated at Kitlae this  20th day of December, 2018.

_________________

H.K. CHEMITEI

JUDGE

20/12/2018

In the presence of:

Mr. Kakoi  for State

Abari  for the Respondent

Court Assistant – Kirong

Ruling read in open court.