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.