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.)