Shaffiq Dar of Mohammed Madhani & Co. Advocates guides us through a minefield of recent judicial pronouncements that have left practitioners pondering on the status of the law.
A Commentary Written for and Edited by www.lawafrica.com
The Kenyan Oaths & Statutory Declarations Act (Cap 15) in section 5 states: "Every Commissioner of Oaths before whom an oath or affidavit is taken or made shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made."
This section is causing problems as it is increasingly being used by Advocates to have Verifying Affidavits struck out as this would in effect result in the whole suit being struck out before it could even take off.
In Eastern and Southern Africa Development Bank -vs- African Greenfields Limited and 2 others, the place where an Affidavit was sworn was not stated. Hewett J held that the omission of the words "At Nairobi" was fatal and the Affidavit was struck out. Onyango-Otieno J in Narok Transit Hotel Limited and Another -vs- Barclays Bank of Kenya Limited, held that if the place and date when the Affidavit was sworn is not indicated, the Affidavit is a non-Affidavit and must be expunged from the record. He considered the argument that the rubber stamp of the Commissioner of Oaths indicated that the Affidavit was made at Nairobi, but rejected such argument saying that he address in that stamp will remain the Commissioners address even if the Affidavit is taken outside Nairobi. See also Glad Ak Finance Limited -vs- Rosaline Macharia where Onyango-Otieno J held that he could not act on an Affidavit which was not dated.
In Jayantkumar Shah -vs- Chandulal Mohanlal Shah and Another, Ole Kiewua J (as he was then) had struck out an Affidavit because the date and place where it was sworn had not been stated. Similarly in Fina Bank Limited -v- Mariri Enterprises Limited, Mbaluto, J held that an Affidavit of Service contravened rule 10 of the Oaths & Statutory Declarations Rules in that it was not indicated where the Affidavit is sworn.
But compare the decisions reached by Commissioner of Assize Visram (as he then was) in James Njoroge Karagu -vs- Hannah Njoki and by Ringera J in Tom Okello Obondo -vs- National Social Security Fund. Commissioner of Assize Visram relied on Order XVIII rule 7 of the Civil Procedure Rules to get around the mandatory provisions of section 5 of the Oaths & Statutory Declarations Act. He accepted an Affidavit notwithstanding the fact that the place where it was sworn had not been indicated in the jurat, arguing that to strike it out on such a technicality would defeat the ends of justice! (He had reached a similar decision in Agip (K) Limited -vs- Jimmy Komo t/a Kiambu Stores). Ringera J agreed with Visrams reasoning.
In Hamida K Kamalkhan -vs- Emad Abduljaleel Abdulbaker, an objection was raised to an Affidavit on the ground that the jurat appeared separately on its own. Waki J held that the Affidavit was not defective. He differed from the decision of Commissioner of Assize Tutui in Mombasa HCCC No 442 of 1998 and Commissioner of Assize Gacheche in , In The Matter of Central Bank of Kenya and Reliance Bank Limited.
In view of all these conflicting decisions (and there must be dozens more), it is unclear what the law is. If the jurat does not state the place and/or the date of swearing or if the jurat is on a separate page on its own, is the Affidavit defective or not? Should the strict and procedural letter of the law be followed leading to the striking out all Affidavits that do not meet the stipulated statutory requirements or should arguments relating to the justice of the particular case be allowed to mitigate what would otherwise be a harsh striking out decision?
Cases Referred to
- Agip (K) Limited -vs- Jimmy Komo t/a Kiambu Stores. Commissioner of Assize Visram.(as he then was) (HCCC No 1738 of 2000 )
- Eastern and Southern Africa Development Bank -vs- African Greenfields Limited and 2 others. Hewett J. (Milimani HCCC No 1189 of 2000)
- Glad Ak Finance Limited -vs- Rosaline Macharia. Onyango-Otieno J. (Milimani Bankruptcy Cause No 13 of 2000)
- Hamida K Kamalkhan -vs- Emad Abduljaleel Abdulbaker. Waki J. (Mombasa HCCC No 5 of 2000 (O.S) )
- Jayantkumar Shah -vs- Chandulal Mohanlal Shah and Another. Ole Kiewua J.(as he then was) (Nairobi HCCC No 1230 of 1997)
- James Njoroge Karagu -vs- Hannah Njoki. Commissioner of Assize Visram (as he then was) (Nairobi HCCC No 713 of 1996)
- Narok Transit Hotel Limited and Another -vs- Barclays Bank of Kenya Limited. Onyango-Otieno J. (Milimani HCCC No 12 of 2001)
- The Matter of Central Bank of Kenya and Reliance Bank Limited. Commissioner of Assize Gacheche (Milimani Misc Application No 427 of 2000 )
- Tom Okello Obondo -vs- National Social Security Fund. Ringera J (Milimani HCCC No 1759 of 1999)