Barlany Car Hire Services Limited-v-corporate Insurance Limited

CASE DETAILS

Case No: HCCC (Milimani) No. 1249 of 2000 (Unreported)

Forum: High Court of Kenya at Milimani, Nairobi.

Judge: P.J.S. Hewett

Date: 12^th October, 2000

Authorities cited in the Ruling

1. H. Ford & Co. Limited-v-Compagnie Furness (France) 1922 2 KB 797

2. Halsbury Laws of England 4^th Edition, Vol. 2 Para. 515

3. Section 4 of the Limitation of action Act

CASE NOTES

In this case, an application for stay pending reference to arbitration was accompanied by a request that filing of the Defence be stayed pending the determination by the court on a preliminary point of law . The preliminary point was whether the Plaintiff was disentitled to any claim having failed to refer its claim to arbitration within 12 months of the Defendant's disclaimer of liability.

The arbitration agreement provided that if the Defendant company disclaimed liability to the insured for any claim, such claim be referred to arbitration within 12 calendar months from the date of the disclaimer. The Plaintiff failed to properly institute the arbitration process and more than 12 months lapsed. The defendant therefore was of the view that the Plaintiff was now too late to arbitrate and indeed even too late to claim at all.

The court held that the Plaintiff was, indeed, too late to appoint an arbitrator or claim there having been no reference to arbitration within 12 months of the repudiation. The court agreed with the Defendant that the clause imposing the contractual deadline was a condition precedent to a valid claim as was held in the case of H. Ford & Co. Limited-v-Compagnie Furness (France) 1922 2 KB 797 where a clause to similar effect was upheld.

The court quoted the following holding in the H. Ford case (supra) with approval:

"Therefore as the jurisdiction of the arbitrator was only given to him by the consent of the parties and the parties agreed that the arbitrator if appointed at all should be appointed within a certain time, it seems to me to follow that as that time has elapsed, neither party had power to appoint an arbitrator unless the other party consented." (at page 810)

The court also upheld the Defendant's argument that there was no longer any cause of action available to the Plaintiff as the the matter was time barred. The court noted that no application had been made to extend the limitation period, if that were possible. The court upheld the following comments in 4^th Edition of Halsbury Vol. 2 Para. 515:

"The parties to an arbitration agreement may, if they wish, contract that no arbitration proceedings shall be brought after the expiration of some shorter period than that applicable under the statute."

The learned judge held that the above words answered the Plaintiff's suggestion that the matter was governed by section 4 of the Limitation of action Act. The court was of the view that the section of the Act merely gives a maximum time limit within which a suit may be brought and thus parties may agree to be limited to a shorter time.

Relevance of Res Judicata in Interlocutory Applications

Frequently, especially in applications for subsequent interlocutory injunctions, a preliminary objection may be raised to the effect that the application is res judicata. Why one would need a subsequent injunction is usually because the initial one has lapsed and the other side is engaged in fresh acts that need restraining to maintain the status quo. The objection may also be raised in applications to strike the defence where an application for summary judgment had initially failed.

 

How objection based on res judicata is raised

Res judicata is raised either in pleadings or at the trial. It seeks to implore the court to deny audience to a party alleged to be raising matters already decided by a court of competent jurisdiction between the same parties.

 

A preliminary objection is usually to the effect that the present application and/or suit is res judicata and, therefore, incompetent. In argument, the objector likely alleges in support that the present application, for instance, is similar to a prior and specified application in the same suit which was settled by the court. In alternative, the objector may argue that the issues raised in the present application were raised and finally decided in the previous application.

 

This usually presents unfamiliar waters to the applicant's side especially to the experienced practitioners who are used to res judicata as a challenge only against the main suit. This article addresses generally this frequently used doctrine of civil procedure. The article goes the extra mile to consider res judicata in preliminary applications.

 

Doctrine of Res judicata defined

According to Kuloba J in Judicial Hints to Civil Procedure, the expression 'Res judicata' means a thing or matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment.  Res judicata is essentially a bar to a subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.

 

The doctrine of res judicata applies to both suits and applications whether they be final or interlocutory. The doctrine restricts the courts in exercising their jurisdiction if the matter in the new issue was heard and finally decided by a competent court.

 

To paraphrase the Honourable Court of Appeal in Gichuki v. Gichuki [1982] KLR 285 the doctrine operates where the dispute is between the same parties and involving the same cause of action as another matter which had previously been adjudicated by a court of competent jurisdiction. In the above case, the appellant was challenging the trial judge's ruling in an application to have the dispute referred to arbitration by elders. The judge had found that the matter in question had been decided previously by a resident magistrate. The court upheld the trial judge's decision.

 

Rationale of the Doctrine of Res judicata

The rationale of the doctrine of res judicata was stated in Timotheo Makenge-v-Manunga Ngochi CA(Nrb) Civil Appeal No. 25 of 1978. Wambuzi JA (as he then was) was of the view that the doctrine is predicated in the public interest need to have an end to litigation. There is also need to prevent abuse of the court process by unscrupulous litigants against hapless defendants. The doctrine also helps prevent parties from gambling with justice system such that where a party is awarded a judgment by one court, he tries another to see whether he can hopefully raise his stakes.

 

The courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. Chances are, if they do, they will end-up contradicting the earlier decisions and making a fool of their colleagues.

 

Section 7 of the Civil Procedure Act

Sections 7 of the Civil Procedure Act define the doctrine of Res judicata as applying to a suit or issue in which matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. The law is as clear as a bell. Section 7 of the Civil Procedure Act is mandatory in its prohibition:

 

"No court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."

 

The test for application of res judicata

Kuloba quoting Law Ag V-P in Kamunye and Others-v-Pioneer General Assurance Society Ltd [1971] EA 263 at 265 has stated the test whether or not a suit is barred by res judicata thus:

 

"Is the Plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon? If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. The subject matter in the subsequent suit must be covered by the previous suit for res judicata to apply"

 

Conditions for doctrine of res judicata to apply

The conditions for application of doctrine of res judicata were authoritatively laid down in Willie v. Muchuki & 2 others (Plaintiff/Applicant's authorities' No. 8) to be three. The court in the case held:

 

"For the doctrine of res judicata to apply, three basic conditions must be satisfied. The party relying on it must show;

(a)   That there was a former suit or proceeding in which the same parties as in the subsequent suit litigated.

(b)   The matter in issue in the latter suit must have been directly and substantially in issue in the former suit.

(c)   That a court competent to try it had heard and finally decided the matter(s) in controversy between the parties"

 

The court was upholding the ruling of Bosire J (as then was) in Nairobi HCCC No. 1322 of 1993 Caltex Oil(Kenya) Ltd-versus-Mohamed Yusaf & Others.

 

In Bulhan & Another v. Eastern and Southern African Trade and Development Bank (Plaintiff/Applicant's authorities' No. 9) it was stated by the court that "matter in issue" under section 6 of the Civil Procedure Act does not mean any matter in issue in the suit but has reference to the entire subject in controversy.

 

The court put it succinctly: "The subject matter must be covered by the previously instituted suit and not vice versa." The court in the above case was clear that for res judicata to apply, the issues alleged to be similar must have been raised in the earlier suit, heard and finally determined or decided by the court.

 

In the Bulhan case, the court found that a court's decision on an application for temporary injunctions under order 39 does not decide the issues in question in the main suit. The orders and views or the basis thereof are not final. The suit must still go for trial and however emphatic or positive the statements or findings of the judge, the same are not conclusive and final.

 

Scope of the Res judicata doctrine

The decided cases interpret the explanation above on res judicata as implying a wide scope of the doctrine of res judicata. In Rajwani versus Roden (Respondent's List No. 17) the court stated that

"Estoppel per res judicatam applies not only to what is expressly decided but also to what is assumed and admitted and is fundamental to what is decided."

 

The above resonates with decision in Yat Tung Investment Co Ltd vs Dao Heng Bank and Another [1975] AC 581. It suffices to quote the decision of the court therein:

 

"But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings."

 

The Court of Appeal in Pop-in (Kenya) Ltd & 3 others versus Habib Bank AG Zurich (No. 19) quoted the above passage to hold that:

 

"the plea of res judicata applies not only to points which the court was actually required by the parties to form opinion and pronounce judgment, but every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time."

 

Res Judicata applies to interlocutory applications

The doctrine applies not only to main suits but also to interlocutory applications. The court in Kanorero River Farm Ltd and 3 others v. National Bank of Kenya Ltd[2002]2 KLR 207 considered and affirmatively settled that issue. The court in that celebrated case held that the doctrine applies to both suits and applications whether they be final or interlocutory.

 

The court in reaching this conclusion upheld the definition of suit entailed in section 2 of Civil Procedure Act. The court stated in that regard:

 

"A suit is defined by the Civil Procedure Act as any civil proceedings commenced in any manner prescribed by Civil Procedure Rules. Therefore any determination of such an application by a court of competent jurisdiction would in appropriate circumstances operate as the plea in bar called res judicata."

 

Similar application not res judicata if grounded on new facts

There is no doubt that res judicata applies to suits between the same parties involving the same cause of action which had previously been adjudicated by a court of competent jurisdiction. The rationale is prevent abuse of the process of the court by vexing the same party on the same facts in the same matter twice. 

 

But res judicata cannot reasonably be construed to prevent a party who seeks the court intervention to prevent a fresh and irreparable assault on his right. In the Kanorero case (supra), the court held on this point that:

 

"The parties in this suit were not precluded from instituting another application for an injunction as long as the fresh application was grounded on new facts which could not have been relied on in the earlier application." (emphasis mine)

 

The facts and holding in the Kanorero Farm case

The facts in Kanorero Farm case were that the defendant/chargee had initially sought power of sale over properties belonging to the plaintiffs. The plaintiffs filed a suit challenging the validity of the statutory notices and sought an injunction restraining the defendant. The parties by consent agreed to have the application for interlocutory relief marked as settled and the defendant to be at liberty to issue fresh notices. The defendant thereafter issued fresh notices of their intention to exercise its statutory power of sale. The plaintiffs again filed suit challenging the validity of those statutory notices, claiming that the statutory power of sale had arisen and that the intended sale was in contravention of the mandatory provisions of the Auctioneers Rules. The defendants opposed the application on the grounds that the issue was res judicata and that the application was incompetent.

 

The court was of the view that a determination on basis of consent by the parties had the same effect as a determination after a hearing and argument. Even then, the court concluded that the second application could not be precluded

 

In that case, the court was of the view that the issue in the initial application was whether or not the defendant could validly exercise its power of sale in furtherance of the statutory notices that it had already issued. Further that the issue was implicitly resolved in favour of the plaintiffs and hence the order that the defendant issue fresh notices and pay plaintiffs' costs of the application. The court then proceeded to confront the question whether in the circumstances of the satisfactory determination of the first application the plaintiffs could institute a fresh and similar application for interlocutory relief. On the question, the learned judge's conclusion was unequivocal:

 

" In my judgment provided the fresh application is grounded on new facts which could not have been relied on in the earlier application, it would not be precluded by the doctrine of res judicata."

 

In the courts view, the consent order allowed the defendant to serve fresh notices. A new factual situation was thus created.

 

Conclusion

In conclusion, it is settled that the doctrine of res judicata applies to applies to applications with the same force as it applies to main proceedings. Hpwever, an application which would otherwise be res judicata is not if based on new facts which could not have been relied on in the earlier application.

Nothing can beat persistence!

"Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful people with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan 'press on' has solved and always will solve the problems of the human race."

-Calvin Coolidge
Lawyer and U.S. President

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A Further Affidavit is Permissible

Frequently, especially in applications for summary judgment under Order 35 Rule 1 of the Civil Procedure Rules, the need to add to the supporting affidavit arises. At those times, depending on whether or not the Respondent has filled a reply, a supplementary affidavit or a further affidavit is what is undoubtedly needed. The question is when you need leave to file the same and when to file without.

Recently, a Defendant in a case I was handling raised the ground of inferiority of the goods supplied whose liquidated value we were seeking a summary judgment. It happened that we filed the motion for summary judgment on the same day with the Defence and therefore we could not reasonably cater for it in the supporting affidavit. We thus filled a further affidavit to traverse the claim of inferiority for the purpose of the summary application. Replying to the defence was open to us but not very appealing as to do so would have created the impression that the Defence on record had triable issues when what we were urging in the summary application was that it was a sham.

 

Whether the court may receive more than one affidavit

The Defendant's counsel raised an objection to the further affidavit arguing that we had not sought leave of the court to file it. The court was therefore called upon to decide the issue raised by the objection, viz. whether more affidavits than one may be received by the Court under Order XXXV rule 1 (2) of Civil Procedure Rules.

 

For generality, I think the same question can be asked of the Order L Rule 3 of the Civil Procedure Rules. This is the omnibus rule on adducing affidavit evidence in civil applications in Kenya. The general issue would thus become: whether more affidavits than one may be received by the court in applications under the Civil Procedure Rules

 

The law on the number of Affidavits in Motions

Generally, Order L Rule 3 permits one to adduce evidence by an affidavit in any motion before the court. On summary judgments, Order XXXV Rule 1(2) provides for adduction of evidence to support an application for summary judgment under the rule. The sub-rule (2) states that:

 

"The application shall be made by motion supported by an affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed."

 

Without more, the literal meaning of the above rules of procedure that that only 'an affidavit' meaning a single affidavit is permitted. Importantly, nothing in the rules prohibit expressly or by implication filling of more than one affidavit i.e. a further or supplemental affidavit. But the literal meaning alluded to above is clearly not the law for reasons that are easy to render apparent.

 

For starters, Order L Rule 16(2) permits filing of a supplementary affidavit with leave of the court. On the face of this sub-rule, it applies where the Respondent has already filed a reply and the Applicant would wish to respond. So that, whenever the replying affidavit or grounds of opposition in response to an application raise issues that deserve to be responded to, the proper way to go would be to seek the court's leave to file a supplementary affidavit. Leave will be granted unless the Respondent shows that it stands to be prejudiced in a way that cannot be compensated.

 

But the again there does not seem to be a bar against the court receiving more than one affidavit. This is especially the case where the Respondent is yet to enter a reply to a motion. For support the foregoing contention, I have in mind the qualification afforded by section 3 (4) of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya.

 

Elevate not rules of court procedure to a fetish

Here, it is important to bear in mind two things. First is the view of Rawal, J concerning Cap. 2 of the Law of Kenya in Dilshad Hassanali Manji-v-Hassanali Vasanji Manji Nrb (Law Courts) HCCC No. 8 of 2005. She stated that the Interpretation and General Provision Act is a special statute to provide the guidance to the courts on the interpretation of other statutory provisions.

The second and last thing to note is the court's attitude to rules of procedure and the need not to elevate them to a fetish. Osiemo J in Panian Ole Mutua & 3 Others-v-Registered Group Representatives Kimana Tikondo Group Ranch Civil Case 522 of 2006 expressed this approach he stated:

 

"The rules of procedure are meant to facilitate the administration of justice in a fair, orderly and predictable manner, not to fetter or choke it."

 

A singular in written law imply a plural

Turning to the provisions of the Interpretation and General Provisions Act on the matter at hand, section 3(4) makes it the law that in statutes the singular for stands for the plural. The effect then is the where the rules of procedure read 'affidavit' the same should also be taken to stand for 'affidavits' as well. The Section 3(4) of Cap. 2 states:

 

"3(4) In every written law, except where a contrary intention appears, words and expressions in the singular include the plural and words and expressions in the plural include the singular."

 

We then turn to apply this to Order L Rule 3 and  Order XXXV Rule 1(2). The latter, for the record, states that:

 

"The application shall be made by motion supported by an affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed."

 

The effect of the combination of the above two provisions of the law is that the singular 'affidavit' in Rule 1(2) does not imply that one cannot file several affidavits as there is nothing expressly prohibiting that. There is also no denying that Civil Procedure Rules are 'written law' and therefore section 3(4) of Cap. 2 above apply to them with equal force. Written law is defined in section 3(1) of the Interpretation and General Provisions Act:

 

"written law" means—

(a) an Act of Parliament for the time being in force;

(b) an applied law; or

(c) any subsidiary legislation for the time being in force;

 

Case where more than one affidavit were held proper

In Surgipharm Ltd-v-Aksher Pharmacy Ltd & Another [2004] eKLR a further affidavit filed without leave in support of a summary application was under objection. The issue before the court was the one under scrutiny here. That is, whether more affidavits than one may be received by the Court under Order XXXV rule 1 (2) of Civil Procedure Rules.

 

The counsel objecting to the further affidavit cited the rule 1(2) for his submission that since the rule provided for an affidavit, there could be no room for supplemental or further affidavit once an application has been filed. The object of the submission was to persuade the court to reject the Plaintiff's further Affidavit.

 

The court concluded that the Counsel could not be right in his submission. It cited the provisions of section 3(4) of the Interpretation and General Provisions Act (Cap. 2 Laws of Kenya) as the reason for the conclusion. The court held that there was no contrary intention in Order XXXV rule 1(2) as to the number of affidavits the Plaintiff or for that matter the Defendant in reply thereto may file. The court thus rejected the contention by the Defendant's counsel objecting the further affidavit.

 

Conclusion

In a nutshell, a party does not need leave to file nor is there a limitation on the number of further affidavit(s) or supplemental affidavit(s) whether under Rule 1(2) of Order 35 or Order L Rule 3. But where a reply to the application has been filed, it seems that leave to file a supplementary affidavit may be needed. If anything prudence dictates that leave be obtained to avoid unnecessary delay and having the client's application challenged on a matter that could have easily been avoided.

 

AN INTRODUCTION TO EXEMPLARY DAMAGES

By  PAUL N. MUSYIMI

Introduction

This article is prompted by the inexplainable inclination, very frequent with advocates who rely on precedents in drafting, of praying for orders for exemplary damages in virtually every suit. Recently , I encountered exemplary damages, in a suit  for compensation on ground of redundancy and unfair dismissal, as one of the prayers for exemplary damages against the Defendant. The Defendant had allegedly failed to give proper notice to the Plaintiffs' trade union and the government of their eminent dismissal of redundancy. On that ground, and in a suit whose cause of action was breach of express and implied terms of an employment contract, the Plaintiff sought exemplary damages ostensibly to punish the Plaintiff and forewarn other like-minded employers against flouting the regulations on pre-redundancy criteria in Kenya.

 

Definition of exemplary damages

Exemplary damages are damages which are punitive in nature and generally intended to teach the defendant that tort does not pay. They are awarded in addition to compensatory damages. Thus the plaintiff receives a windfall over and above his true loss. It has been said that the distinction between aggravated and exemplary damages that aggravated damages are awarded for the conduct that shocks the plaintiff and exemplary damages are awarded for conduct that shocks the court.

 

Conditions for award of exemplary damages

As per Halsbury's Laws of England 4^th Edition Volume 12 Para. 1190 at page 474, exemplary damages may only be awarded in actions for torts. Exemplary damages may not be awarded in actions for breach of contracts as was held in Kenny-v-Preen [1962] 3 All ER 814, CA.

 

Where exemplary damages provided for by statute

At one time it was believed that exemplary damages could be awarded in any case  where the defendant had behaved outrageously. However, in Rookes v Barnard [1964] AC 1129; [1964] 1 ALL ER 367, the House of Lords held that except where is specifically authorized by a statute exemplary damages should only be awarded in two categories of cases.

 

Against oppressive, arbitrary or unconstitutional action by government servant

One, in case of a tort occasioned by oppressive, arbitrary or unconstitutional action by servant of the government. In Cassell & Co. Ltd  v Broome [1972] AC 1027;  [1972] 1 All ER 801, the House of Lords applied the approach in Rookes v Barnard where Lord Reid said that this category did not extend to oppressive action by a private corporation or individual.

 

For tort calculated by Defendant to yield profit

The second case in which exemplary damages may be available is where the defendant has calculated  by him to make a profit for himself by committing the tort even after paying compensatory damage. In Cassell & Co Ltd v. Broome (supra), the court was of the view that the damages came into this category. The defendant published a book which made defamatory statements about the plaintiff. The book was published in the face of threats by the plaintiff that he would bring a libel action against the defendants. The plaintiff was awarded 15,000 pounds compensatory damages and 25,000 exemplary damages. It was held that the plaintiff was entitled to exemplary damages because the defendant  had calculated  that it was worth running the risk of the book being held to be libelous because of the profits which they thought they would make from the sales of the book and the attendant publicity. But it should be noted that the mere fact that a tort is committed with the intention of making a profit is not sufficient of itself to bring the case within this category. There must be some evidence that the defendant decided that there was a profit to be made out of the wrongdoing.

 

Scarcity of caselaw on exemplary damages in Kenya

There are few direct cases in Kenyan jurisprudence dealing with exemplary damages. To be specific, only two local reported cases make mention of exemplary damages. In the case of Gitau-v-Attorney General [1990] KLR 13, the learned judge found that the actions of two police officers who wrongfully assaulted, battered and falsely imprisoned the Plaintiff were oppressive, arbitrary and unconstitutional and therefore fell in the first category of the instances where exemplary damages may be awarded. That it is, the police officer's actions were oppressive, arbitrary and unconstitutional action by the servants of the Government and therefore warranted an award of exemplary damages. The court awarded Kshs. 10,000 as exemplary damages over and above the awarded general damages of Kshs. 25,000.

 

In Biwott-v-Mbuguss & Another (No. 2) [2002] 1 KLR 321, a defamation/libel suit, exemplary damages had been sought as an alternative to aggravated damages.  It appears the Plaintiff's counsel in the case chose to prefer/insist on aggravated damages in his submissions which were eventually awarded.

 

Conclusion

There is no doubt exemplary damages are strict remedy be sought only in those rare occasions when the settled conditions for its award are met. The following are the key points to remember when dealing with award or prayer for exemplary damages. Firstly, the cause of action must be a tort claim (remember exemplary damages are only applicable in tort and never in claims for breach of contract). Secondly, exemplary damages will be granted upon proof of oppressive, arbitrary and unconstitutional action by a servant of the Government but a private corporation. In addition, exemplary damages are also awarded where it is shown that the plaintiff had calculated to gain profit through the tort. Lastly, exemplary damages will be be readily awarded where they are expressly provided for by a statute.  

Three sorts of lawyers

There are three sorts of lawyers - able, unable and lamentable.

-Robert Smith Surtees-

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Four Quotes from Romeo & Juliet By William Shakespeare

"A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect."

Sir Walter Scott, 1771-1832. (Scottish Novelist, Poet, Historian and Biographer)

Taking the above advise, I have taken to reading serious English Poetry. And guess where I started, the ultimate love story and quintessence of English Poetry of all times: Romeo & Juliet. I fervently believe in the saying that the best way to learn is by sharing. And in the spirit of sharing, and the hope that in so doing my mind will retain, I bring you these four quotes from the famous play. I attempt a beginers explanation which may, to an expert's eye, be mere parroting of study guide's stuff. But I do not pretend to write for the experts here!

1. Romeo: But soft, what light through yonder window breaks?
   It is the east, and Juliet is the sun.
   Arise, fair sun, and kill the envious moon,
   Who is already sick and pale with grief
   That thou, her maid, art far more fair than she. . . .
   The brightness of her cheek would shame those stars
   As daylight doth a lamp; her eye in heaven
   Would through the airy region stream so bright
   That birds would sing and think it were not night.

   (Act II. Scene (i). Lines 44–64).

   (Explanation: Romeo speaks these lines in the so-called balcony scene in the love play, while hiding in the Capulet's garden after the feast. He(Romeo) sees Juliet leaning out the window Juliet's surpassing beauty makes Romeo imagine that she is the sun, transforming the darkness into daylight. Romeo personifies the moon, calling it "sick and pale with grief" at the fact that Juliet, the sun, is far brighter and more beautiful. Romeo then compares Juliet to the stars, claiming that she eclipses the stars as daylight overpowers a lamp—her eyes alone shine so bright that they will convince the birds to sing at night as if it were day.)

2. Juliet: O Romeo, Romeo,
   wherefore art thou Romeo?
   Deny thy father and refuse thy name,
   Or if thou wilt not, be but sworn my love,
   And I'll no longer be a Capulet.

   (Act II Scene (i) Lines 74–78)

   (Explanation: Juliet speaks these lines, perhaps the most famous in the play, in the balcony scene . Leaning out of her upstairs window, unaware that Romeo is below in the orchard, she asks why Romeo must be Romeo—why he must be a Montaque the son of her family's greatest enemy ("wherefore" means "why," not "where"; Juliet is not, as is often assumed, asking where Romeo is). Still unaware of Romeo's presence, she asks him to deny his family for her love. She adds, however, that if he will not, she will deny her family in order to be with him if he merely tells her that he loves her.)

3. Mercutio: O, then I see Queen Mab hath been with you. . . .
   She is the fairies' midwife, and she comes
   In shape no bigger than an agate stone
   On the forefinger of an alderman,
   Drawn with a team of little atomi
   Athwart men's noses as they lie asleep.

   (Act I. Scene (iv) Lines 53–59)

   (Explanation: This is Mercutio's famous Queen Mab speech. Mercutio is trying to convince Romeo to set aside his lovesick melancholy over Rosaline and come along to the Capulet feast. When Romeo says that he is depressed because of a dream, Mercutio launches on a lengthy, playful description of Queen Mab, the fairy who supposedly brings dreams to sleeping humans. The main point of the passage is that the dreams Queen Mab brings are directly related to the person who dreams them—lovers dream of love, soldiers of war, etc. But in the process of making this rather prosaic point Mercutio falls into a sort of wild bitterness in which he seems to see dreams as destructive and delusional.)

4. From forth the fatal loins of these two foes
   A pair of star-crossed lovers take their life,
   Whose misadventured piteous overthrows
   Doth with their death bury their parents' strife. . . .
   O, I am fortune's fool! . . .
   Then I defy you, stars.

   (Explanation: This trio of quotes advances the theme of fate as it plays out through the story: the first is spoken by the Chorus (Prologue.5–8), the second by Romeo after he kills Tybalt (III.i.131), and the third by Romeo upon learning of Juliet's death (V.i.24). The Chorus' remark that Romeo and Juliet are "star-crossed" and fated to "take their li[ves]" informs the audience that the lovers are destined to die tragically. Romeo's remark "O, I am fortune's fool!" illustrates the fact that Romeo sees himself as subject to the whims of fate. When he cries out "Then I defy you, stars," after learning of Juliet's death, he declares himself openly opposed to the destiny that so grieves him. Sadly, in "defying" fate he actually brings it about. Romeo's suicide prompts Juliet to kill herself, thereby ironically fulfilling the lovers' tragic destiny.)

When the jurat defects the affidavit

Preliminary

Preliminary objections are often raised seeking the striking of both the application and the suit on basis that the jurat does not conform to section 5 of the Oaths and Statutory Declarations Act, Cap. 15 of the Laws of Kenya.

The grounds relied on in such objection affidavit will likely be read:

(i)That the verifying affidavit and/or supporting affidavit do(es) not state where they were sworn;
(ii)That the Plaint and the application cannot stand on their own without the respective affidavits.

In such instance, the verifying affidavit and/or the supporting affidavit will have missing the place it was sworn. Such omission is invariably a matter of clerical error or oversite. But in law, it is taken lightly.

What is a jurat?

The jurat is the section of an affidavit where it is stated, a matter of law, where the same was sworn. The jurat customarily state i.e. ‘Sworn at [e.g name of town where affidavit was sworn] by the said[name of a deponent]’.

The rationale for this is to ensure that affidavits sworn outside the jurisdiction are restricted from being shown to be sworn in Kenya. Similarly, the requirement ensures that the opposite side can raise issues as to the forging of the signature where it can show that the deponent was not at the place stated at the time of swearing.


Real case scenario

In a recent case, as a result of clerical error, the jurats of both the verifying affidavit and supporting affidavit for a summary judgment application merely stated: "Sword by the said[X] (name withheld). However, the stamp for the commissioner for oath at the attestation clearly indicated his address in both affidavits as P.O Box XXX-00400, Nairobi. the above grounds were raised with minor modifications.

Statutory law on affidavits and jurat

The Law on affidavits is principally to be found in the Oath and Statutory Declarations Act (Cap. 15 Laws of Kenya), Interpretation and General Provisions Act (Cap 2 Laws of Kenya), Order XVIII, Order L, and Order VII (in the case of verifying Affidavit).

In the present case, the preliminary objection based as it is on alleged deficiency of the jurat of both the verifying affidavit and the supporting affidavit. Section 5 of the Oath and Statutory Declarations Act stipulates:

“Every Commissioner for oaths before whom an oath or affidavit is taken or made under this Act shall state truly I the jurat or attestation (emphasis supplied) at what place and what dare the oath or affidavit is taken or made.”

The obvious interpretation of this section is that the date and place where the affidavit is made can be stated either in the jurat or in the attestation. How it is to be stated in the attestation is not clear. For instance, the issue of whether or not a stamp affixed in the attestation stating the address of the commissioner will suffice.

The argument against the place in the stamp sufficing has invariably been that even when a commissioner stamps an affidavit from another town, the address always remains that of the town where s/he is based. Thus, it is said, that the stamp's address is not meant to suffice as an indication of the place where the affidavit was made but for purposes of correspondence.

The counter argument is that where the affidavit is made from another town than that indicated in the stamp, the commissioner will be more likely than not to state that fact. In any event, where there is no prejudice on the other party and the omission of the place is not meant to mislead, the place indicated in the stamp should suffice.

The gist of the objection

The Objection by Defendant’s counsel in the case scenario was that with the stated lack of wordings, the affidavits were defective and thus the Plaint and respective application are also defective and should be struck out as they cannot stand on their own.

Such position has been ratified in at least two cases of the High Court that are known to me. In Narok Transit Hotel Ltd and Another-v-Barclays Bank Kenya Ltd (H.C.C.S. (Milimani) No. 12 of 2001 Onyango Otieno J. (as he then was) struck out an application based on the affidavit which had similar jurat and attestation. The judge observed that the address on the stamp “cannot be on its own without anything further be taken as the place where the affidavit was sworn.”

Additionally, in Eastern and Southern Africa Development Bank Ltd-v-African Green Fields Ltd. And 2 Others (H.C.C.S. Milimani) 1189/00 the late Hewett J. also struck out a suit on basis of defect in the jurat.

Recent cases dissaproved above cases

However, recent judgments touching on all fronts on facts as above stated have doubted and disapproved the above judgments of the court. In their place, the High Court has taken to finding that the Affidavits are not defective if they are as appeared above.

In Ocean Freight Transport Co. Ltd-v-Purity Gathoni Wamae and Another (HCCS No.3958 of 91 (unreported) Rawal, J relying on Section 72 of the interpretation and General Provisions Act (Cap. 2 Laws of Kenya) found and I quote:

“In my humble opinion, the present affidavit falls squarely within the above provision of the Act of parliament. I am also fortified by the fact that the stamp affixed by the commissioner of Oaths does state the place of his signature. I would have presumed that if he or she was not affixing the stamp on the place where it was signed, the necessary statement or amendment to the stamp would have been made. In any event, I can safely surmise that the stamp affixed does satisfactorily state the place where the affidavit was sworn and that the omission to mention the place in jurat is not a deviation in substance but is in its form and the same is not prejudicial to the opposite side and is not calculated to mislead.”

In the reaching the above holding, the court relied on the case from Court of Appeal namely Unga Ltd-v-Amos Kinuthia and Gabriel Mwaura (Civil Appeal No. 175 of 1997) wherein it was held that the requirements of section 5 of the Oaths and Statutory Declaration Act are in respect of the form of the document as opposed to substance which is covered under Section 72 of the Interpretation and General Provisions Act (supra).

Law on defectiveness as to form

Section 72 of Cap. 2 of the Laws of Kenya states:

“Save as is otherwise expressly provided, whenever a form is prescribed by a written law, an instrument or document which purports to be in that form shall not be void by reason of a deviation therefrom which does not affect the substance of the instrument or document, or which is not calculated to mislead.”

The import of the above section is that if the defect is in form, it is not a fundamental defect or irregularity and thus can be curable and/or received under order XVIII Rule 7 of the Civil Procedure and section 72 of the Interpretation and General Provisions Act.

In the Ocean Freight case (supra) and the latter and recent case of Dilshad Hassanali Manji-v-Hassanali Vasanji Manji Nairobi Law Courts HCCC No. 8 of 2005 Rawal, J found that the failure to state the place where the affidavit was made while the attestation states the same by way of stamp address is a defect as to form. The court added that that is especially the case where the ommission does not prejudice the opposite side or is not found to be calculated to mislead.

Order XVIII Rule 7

In so holding, she dismissed the argument for striking out the affidavits in both cases. The case for striking had been that Order XVIII Rule 7 of Civil Procedure Rules could not be relied by the court to receive the affidavit in the form thereof along with the defects as doing so would be contravening a specific statutory section (section 5 of the Oaths and Statutory declarations Act). She found that even if the Order was to be found to be precluded from the application, section 72 of Cap. 2 of the Laws of Kenya would still be sufficient save the affidavits.

Order XVIII Rule 7 authorizes courts to receive affidavits despite irregularity in form thereof. Being a subsidiary legislation by the Rules Committee, it admittedly cannot be held as authorizing that which is objected by a section of a statutory provision, namely, section 5 of the Oaths and Statutory Declarations Act.

Unga Ltd holding binding on High Court

However, the contention against striking out the affidavits here is not based on Order XVIII Rule 7 only. The argument is that given the allowance in section 5 of Cap. 15 of Laws of Kenya that the place where an affidavit is made be stated in either the jurat or attestation, where the place is stated in the attestation vide the stamp of the commissioner for oaths, the deficiency in stating the place is not of substance but of form.

The above argument finds solace in the holding of the Court of Appeal to in Unga Ltd. Case (supra) which case is binding on the High Court that the requirements under section 5 of Cap. 15 of Laws of Kenya are in respect of form.

Deficiency in the jurat of form

Thus the deficiency objected in the case scenario is clearly a matter of form. That being so, section 72 of Cap. 2 becomes applicable to the extent, as was held by Rawal J in Ocean Freight case (supra) and affirmed in Dilshad case (also supra), the place stated in the stamp suffices.

Conclusion

In a nutshell, there is no defect as would merit striking out of the affidavit. The party relying on the affidavit will only need to cite Section 72 of Interpretation and General Provisions Act The outcome would be arrived if one was to go by the Order XVIII Rule 7 of civil Procedure Rules. That is, the court will find that it should receive the affidavit despite the objected and/or alleged irregularity.

There is no reason why the court would not arrive to the same decision where the stamp contains a date but the jurat lacks one. But as a caution to litigants, it is better save than sorry. I advice careful drafting and proof reading to save clients and court time dealing with such objections as this-which no doubt can be avoided.

The law on hunting the hunter: Dismissal for want of prosecution

Sometimes the Plaintiff's side sleeps on the job and forgets prosecute the case for unjustified time. In such instances, it may be time to hunt the hunter. In other words, such delay may be the perfect opportunity for the Defence to turn the tables on the Plaintiff's side and put it on the defensive. If lucky, the defence may get away with dismissal of an otherwise meritorious case.

Failure to prosecute may be inadvertent or part of Plaintiff side's grand strategy. Usually, delay is very agreeable to Plaintiff's side when the status quo is already maintained in its favour. This happens, for instance, when the subject matter is preserved via an order in their favour and the prospects of winning the case are bleak. A real life example is in lease cases when the landlord has been prohibited from evicting the tenant but the tenant has no prospect of success in the case. Delaying the matter would be very appealing to such a tenant.

When such delay games are put up, the Defence counsel often times watch the client, the Defendant, get restless and frustrated with the justice system. In the extreme cases, the client decides a change of advocates is what the impasse needs and fires the counsel on record. Occasionally, the client requests opinion on the repercussions of taking law in his hands and damning the Plaintiff.

However, before your client dismisses you as not offering much help and resorts to self-help, much to your chagrin, you can check whether dismissal for want of prosecution can help. This article looks at the law on dismissal for want of prosecution in Kenya.

At the onset, it is important to observe that dismissal for want of prosecution is not a panacea to intentional delays, and is not often granted. However, dismissal for want of prosecution is meant to and helps stem injustice caused defendants as a result of delays in prosecuting cases. At least, if dismissal fails, the Plaintiff's side is definitely nudged to take a hearing date.

The legal basis for dismissal for want of prosecution

In Kenya, dismissal for want of prosecution and generally regulations on prosecution of suits and adjournments is provided for under Order XVI of the Civil Procedure Rules. The basis for the provisions of the Order in the substantive law appear to be sections 3A and 63(e) of the Civil Procedure Act.

In deed, the roots basis for the requirement of expediency of prosecution of civil suits is section 77(9) of the constitution. It is to the effect that '[civil] cases shall be given a fair hearing within a reasonable time' (Emphasis mine)

Section 3A of CPA gives court unlimited power and preserves its inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. On its part, section 63 of CPA which is the statutory basis of all interlocutory applications gives courts the discretion, where it is so prescribed, in order to salvage justice from defeat to make such interlocutory orders, inter alia, as appear to the court to be just and convenient. (Emphasis supplied)

Finally, Order XVI of the civil procedure rules is the repository of the operative law on applications and conditions for applications for dismissal for want of prosecution. The Order states in Rule 5:

"If within three months after-

1. the close of pleadings;or

2. deleted by L.N 36/2000

3. the removal of the suit from hearing list; or

4. adjournment of the suit generally.

the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant(s) may either set the suit down for hearing or apply for its dismissal.

The order does not stipulate the manner of making applications and therefore Order L rule 1 is applicable in this respect and the application is supposed to be by way of notice of motion. Order L Rule 3 provides that 'every motion shall state in general terms the grounds of the application and where the motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.

Courts take on dismissal for want of prosecution

The courts have variously been called to interpret and apply the law on application for dismissal for want prosecution. It does not seem far fetched to state that the law on same is well settled.

The case of ET Monks & Co. Ltd-v-Evans (1985) 584 established the public policy interest in demands that the business of the Court be conducted with expedition. In Agip (Kenya) Limited-v-Highlands Tyres Limited [2001] KLR 630, Visram J considered and articulated the flip side of the issue. The judge stated

"It is clear that the process of the judicial system requires that all parties before the court should be given an opportunity to present their cases before a decision is given. It is, therefore, not possible that the Rules Committee intended to leave the Plaintiff without a remedy and to take away the authority of the court when it made order XVI rule 5 of Civil Procedure Rules."

In the case of Naftali Opondo Onyango versus National Bank of Kenya [2005] eKLR, the court reiterated the burden of proof that a Defendant seeking a dismissal for want of prosecution must meet. Quoting Salmon, L.J. in Allan-v-Sir Alfred McAlphine and Sons Ltd (1968) 1 ALL E.R. 543, F. Azangalala, J stated that:

"The Defendant must show:

1. That there has been inordinate delay… What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs.

2. That this inordinate delay is inexcusable. As a rule until a credible excuse is made out the natural inference would be that it is inexcusable.

3. That the Defendants are likely to be seriously prejudiced by the delay. This may prejudice at the trial of issues between themselves and the Plaintiff or between each other or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule the longer the delay the greater the likelihood of prejudice at trial."

The Court of Appeal in the case of Salkas Contractors Ltd-v-Kenya Petroleum Refineries: Mombassa C.A No. 250 of 2003 (UR) stated that the above principles apply in Kenya and had been consistently followed by Kenyan courts. For instance, Chesoni J, as he then was, applied the principles in the case of Ivita-v-Kyumbu (1984) KLR 441 when he observed that:-

"The test applied by the Courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is whether justice can be done despite the delay. Thus, even if the delay is prolonged if the Court is satisfied with the Plaintiff's excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the Court."

Courts reluctant to dismiss for want of prosecution!

In deciding whether to dismiss a suit for want of prosecution, it seems that a court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay, that the Defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the Plaintiff. In the Naftali case (supra), the judge said as much and proceeded to consider the fact that the Plaintiff had shown that he had instructed his lawyers to urgently fix the suit for hearing on merit. The court, as a result, concluded that the Plaintiff had not lost interest in the case and that the suit could then be prosecuted expeditiously. The court thus declined to grant the orders for dismissal.

In the Agip (Kenya) Ltd case (supra), Visram J succinctly summarized the law on dismissal for want of prosecution thus:

"The Principles governing application for want of prosecution that must be shown are that:

1. the delay is inordinate

2. the inordinate delay is inexcusable; or

3. the Defendant is likely to be prejudiced by the delay."

On delay, the judge was clear:

"Delay is a matter of fact to be decided on the circumstances of each case. Where a reason for the delay is offered, the court should be lenient and allow the Plaintiff an opportunity to have his case determined on merit. The court must also consider whether the Defendant has been prejudiced by the delay."

In that case, there was a delay of 8 months. The Plaintiff's counsel explained that by stating that it was due to relocation of its offices that the delay in prosecuting the case arose and stated that they were willing to take an early hearing date. The court found the explanation satisfactory and further thought that 8 months was not inordinate in the circumstances of the case. The court also considered generally the conduct of the Plaintiff in the case and particularly its vigilance and spirited effort in defending the present application for dismissal and arrived to the conclusion that the Plaintiff was not indolent as alleged.

The court also considered the matter of prejudice. The counsel for the Defendant in the case had suggested that the amount claimed in the suit was irrelevant. The court did not, however, agree with him. It considered that the claim of the Plaintiff was for a substantial amount of money namely Kshs 50 Million. The court thus concluded that given the amount, the claim was not a simple amount to be taken lightly. The judge was of the view that the court would not be up to its duty if it were to drive the Plaintiff's claim out of the seat of justice because of the 8 Month's delay. He reminded himself of the familiar plea to courts that they participate in sustaining suits rather than throwing them out on minor procedural defects.

Finally, in the case of Esther Chemeli Keter-v-Charles Kirui & 3 others [2005] eKLR the delay had been well over 7 months. The court confronted with the question whether the plaintiff's suit therein ought to be dismissed for failure to prosecute for the aforestated period found in the negative. While conceding Plaintiff's indolence in not attempting to fix the case for hearing, it considered the fact that the matter in dispute between the Plaintiff and the 3^rd Defendant therein (the applicant for dismissal) could not be separated with the matters in issue between the Plaintiff and the other three Defendants. The court stating that the mattes in issue were intertwined and therefore inseparable concluded that if the court were to strike the Plaintiff's suit against the 3^rd Defendant alone, it would fatally compromise the Plaintiff's suit as against the other Defendants. It therefore declined to give the order for dismissal in 'the interest of justice' stating that it could have been a different scenario had all the defendants applied.

Caution when applying for dismissal for want of prosecution

Prudence is useful in deciding whether or not to apply for dismissal for want of prosecution. Given that it is not given that one will to gets the dismissal, it is important that one tread with caution. The good thing is that costs are rarely awarded even if the application does not sail through. The Plaintiff's side is usually very willing to consent to a withdrawal. But under no circumstances should the defence counsel swear the affidavit in support of this application. If that be the case, almost always, the Plaintiff's side issues a notice to cross examine the counsel and that definitely punctures the application.

If you are opposing a dismissal for want of prosecution where there is an inordinate delay, the way to go is mainly to look for preliminary objections that are fatal to the application. If you have those, a reasonable defence side should consent to shelving the application and taking a hearing. Failing a good, try a good response and bask in the fact that courts always encourage conclusion of trial and equally abhor dismissals.

Conclusion

Needless to say, dismissals for want of prosecution are granted mainly in exceptional cases where there has been inordinate and unexplained delay on the part of the Plaintiff's side. But there is no harm in jolting the Plaintiff(s) into action. Even if the matter is not dismissed, a order as to taking of new dates or a rush by the Plaintiff's side to invite for taking dates is guaranteed. But while at it, caution demands that you avoid common place mistakes like counsel swearing controversial matters or filling a defective affidavit.