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ELCOtherNot stated in judgment· [2013] KEELC 5 (KLR)

Mary Bakira Ndika v Salvation Army [2013] KEELC 5 (KLR)

High Court of Kenya
29 November 2013
PNP. NYAMWEYA
620 words in judgment
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The bottom line

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Kenya's High Court confirmed supplementary affidavits can include new facts not in the plaint, as long as they are relevant and not scandalous.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 24th May 2013 seeking an injunction restraining the Defendant from interfering with Plot Number 2428 pending the hearing of the suit. The Defendant, through a replying affidavit sworn by its Chief Secretary, Lt. Colonel Nahashon Njiru, opposed the application. At the hearing on 23rd July 2013, the Plaintiff was granted leave to file a supplementary affidavit, which was sworn on 6th August 2013 and filed on 7th August 2013. At the mention on 1st October 2013, the Defendant's counsel orally applied to strike out the supplementary affidavit on the ground that it introduced new matters not pleaded in the Plaint, a position the Plaintiff opposed as made in bad faith and merely buttressing the supporting affidavit. The court framed a single issue: whether the supplementary affidavit should be struck out for raising matters not in the Plaint. Relying on Order 19 Rule 3, which confines affidavits to facts within the deponent's knowledge with provision for information and belief in interlocutory proceedings, and Order 19 Rule 6, which permits striking out only scandalous, irrelevant or oppressive matter, the court held there is no requirement that affidavit matters be pleaded in the Plaint. The Defendant failed to identify any offending content, and no prejudice was shown since it could respond to any new matters. The striking-out application was denied with no orders as to costs. The injunction application itself was yet to be determined.

Key legal issues

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01

Whether a supplementary affidavit may raise matters not contained in the Plaint

Holding

The supplementary affidavit was properly on record; affidavits are not confined to matters pleaded in the Plaint, and the Defendant failed to identify any inadmissible content

Reasoning

Order 19 Rule 3 confines affidavits to facts within the deponent's knowledge, allowing statements of information and belief in interlocutory proceedings. The deponent expressly stated her matters were within her own knowledge, and the Defendant did not identify any matter outside her knowledge, belief, or whose source was unstated. Order 19 Rule 6 permits striking out only scandalous, irrelevant or oppressive matter, none of which was shown, and the Defendant could respond to any new matters without prejudice.

p. 2

Legal principles established

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  • There is no requirement that matters stated in an affidavit be pleaded in the Plaint; the purpose of an affidavit is to provide evidence of facts alleged in a Plaint, Defence or interlocutory application
  • The only limitation on affidavit content is that matters must not be scandalous, oppressive or irrelevant, per Order 19 Rule 6

Court orders

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  1. 1.The Defendant's oral application to strike out the Plaintiff's supplementary affidavit sworn on 6th August 2013 and filed on 7th August 2013 is denied
  2. 2.No orders as to costs
Jurisdiction invoked
Not stated in the judgment; the court exercises original civil jurisdiction over an interlocutory application in a pending suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Bakira Ndika v Salvation Army [2013] KEELC 5 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/5/eng@2013-11-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.