CIVIL PROCEDURE Lesson 6

23.10.02

PROOF BY AFFIDAVIT
The general rule is that the manner of proving facts in a court of law is by
oral evidence, however, sometimes the court may order that evidence be
presented to the court by way of an Affidavit.
Affidavits may also be used in certain applications where the statutes provide
for it.
RULES RELATING TO DRAWING UP OF AFFIDAVITS
Order XVIII Rule 2 provides that in instances where evidence has been given
to the court by way of an affidavit, the court may either upon the application
by one of the parties or on its own motion require that the Deponent of an
Affidavit appears in court for cross examination. Even where you are allowed
by the statutes to give the evidence by way of affidavit the court reserves
the right to call the deponent of the affidavit.
CONTENTS OF AN AFFIDAVIT
1.

The general rule is that the affidavit must contain facts within the
deponents personal knowledge; there is an exception to this law in
interlocutory proceedings you can have facts in the affidavit that
are based on information and belief. If it is not interlocutory
proceedings you have to seek the leave of the court if you want to
include facts based on information and belief and if you include the
information and belief you must quote source and information based
in belief you must include the ground for belief.

Life Insurance Corporation of India V. Panesar in this case the plaintiff

had sued the defendant for monies due under an insurance policy. He was
asking for the money to be paid in Kenyan currency. After the Defendant
had entered appearance, the plaintiff applied for summary judgment. The
defendant opposed application for summary judgment claiming that it had a
good defence and they filed an Affidavit supporting their grounds of
opposition. This Affidavit stated that the policies of insurance specifically

provide for payment in Indian Rupees. What happened was that that
statement was challenged. That was a fact based on information and yet
the source had not been stated. The statement was not defective because
the source of information was the insurance policy itself. The deponent
had received the source. The court said that it would have been prudent
to attach the Policy Document.
Riddlesburger Case

CaspAir v. Harrycandy
In this case the plaintiff an air pilot sued the defendant for recovery of
money due to him. Thereafter the Air pilot left the country and was
unable to come to the court at the time of the hearing of the case. His
lawyers then applied for his evidence to be taken by way of a commission.
The Affidavit supporting that application was sworn by the advocate and
that affidavit contained among other things the fact that the pilot or the
plaintiff was prevented by his duties at work and expense among other
factors from being able to come to court to give evidence. That affidavit
of the advocate was challenged for being defective. It was challenged on
the grounds that the advocate did not state what he knew for a fact, what
he was informed or what he believed. The Court of Appeal held that
affidavit of the advocate was defective.
2.

If you are swearing an affidavit on behalf of several applicants, you

must say so in the affidavit. Mwangi Kingori v. City Council of
Nairobi. If you dont indicate that your Affidavit will be found to be
fatally defective.
3.
Affidavit should be in separate paragraphs so it comes out more
clearly.
4.
It should be dated and signed and indicate the place i.e. signed in
Nairobi on this day of .
Mayers v. Akira Ranch Ltd
John Kingori v. City Council Civil Case No.
Article by Pheroze Nowrojee The Defective Affidavit
Advocate Magazine of January 1984 page 9.

Masefield Trading Co. Ltd v. Kibui Civil Case No. 1794 of 2000
Decision of issue of Affidavit by Mbaluto J.
Tom Okello Obondo v. NSSF H.C.C. No. 1759 of 1999
Decision of Justice Ringera
Eastern & Southern Development Bank V. African Greenfields Ltd civil case
no. 1189 of 2000
Decision by Hewitt J.
Masefield Trading Co. Ltd v. Kibui civil case No. 1796 of 2000
Justice Hewitt Decision

INTERIM ORDERS:
Interim orders or interlocutory orders are those passed by a court during the
pendacy of a suit which do not determine finally the substantive rights and
liabilities of the parties, in respect of the subject matter or the rights in the
suit. Interim orders are supposed to assist the parties through the process
of litigation. They are also supposed to help in the administration and delivery
of justice and also for protection of the subject matter and the rights of
parties.
There are various types of interim orders
1.
2.
3.
4.
5.
6.

Orders for a commission;

Arrest before judgment;
Attachment before judgment;
Temporary injunctions;
Appointment of receivers; and
Security for costs.

AN ORDER FOR A COMMISSION

An order for a commission is an interim and it is within a pending suit and the
application is by way of Chamber Summons. You can apply for an order for a
commission for various reasons

a.
b.
c.
d.
e.

examination of witnesses
to make a local investigation;
To examine accounts;
To make up partitions;
To hold a scientific investigation;

Examination of Witnesses
Patni Case is a very good example where the lawyers asked for a commission to
go to London and take the evidence there. The rule is that evidence is given
at the trial orally but it is not always possible. The court has to give an order
for one to take a commission. Where a person is very sick, one can take a
commission to go and get the testimony of the witness from where they are.
Suppose a witness is apprehensive about their safety? That harm could come
to them if they appeared in court.
LOCAL INVESTIGATION
2.
One can ask for a commission for a local investigation. Suppose the
case is about a local property and there is an argument as to the market
value, it would be hard for the court to appreciate exactly where the
property is and so it is allowed that one can hire an independent valuer
to assess the property. This is not in all cases it is only if the facts or
circumstances of that case are peculiar and it makes it difficult to give
evidence in court.
EXAMINATION OF ACCOUNTS
The court may also give a commission to examine accounts, suppose two people
are fighting over a company and there is dispute as to the status of the
accounts of the company and the courts needs that information on the status
of the account in order to reach a decision. The normal process would be to
put somebody in the company to cheque the status of the accounts. But
suppose it is difficult to put somebody on a witness stand to testify all that?
One can ask for a commission to hire someone who can go to the company and
TO MAKE A PARTITION
An example is suppose 2 people are fighting over a specific property and the
court has finally decided that the property should be divided in half and each
person gets half a piece? The Court issue a commission for a surveyor to

ensure that somebody goes to make that partition divides the property in half
and present the draft documents in court.
SCIENTIFIC INVESTIGATION
Sometimes some of the testimony to be presented to court is of a scientific
nature and cannot be tried in court. The court will issue for a commission for
the case to be tried outside.
2.

ARREST BEFORE JUDGMENT

Generally the rule is that a creditor having a claim against the debtor has
first to obtain a decree before they can execute against the debtor.
Normally they would execute by arresting the debtor or taking his property.
But there are other special circumstances one may be able to apply for arrest
of the person before judgment. For example if a person is planning to leave
the jurisdiction of the court with the intent to abscond from liability and
defeat justice, one can apply for an order of arrest before judgment.
3.

ATTACHMENT BEFORE JUDGMENT

This is where the defendant is disposing of their property so that they can
defeat realisation of a court decree where one has been awarded. In this
case, you will make an application for an order for attachment before
judgment. It does not mean that the order will automatically be granted. The
court can order for the property to be attached if there is real danger of
trying to circumvent justice. The court is usually cautious about granting this
order because they are essentially taking away somebodys property.
4.

TEMPORARY INJUNCTION

It is a well settled principle of law that as part of administration of justice,

the court may grant certain auxiliary relief in order to promote justice.
Injunction is that type of a relief. An injunction is a judicial process whereby
a party is required to do or to refrain from doing any particular act. The
primary purpose of injunctions like any other interim relief is preservation of
property, legal rights and liabilities of parties until their conflicting claims are
determined. In making an order for an injunction, the court has to come up

with a workable formula through striking a balance between the pros and cons
of the case. Examples of an injunction are suppose Eric Wainaina (musician)
found out that his music is being pirated. This would be in breach of
copyright. Eric would go to court to seek a restraining order to restrain the
reproduction and distribution of the pirated cassettes, he would also ask for
an injunction to restrain any further sale of the tape and he would also be
seeking a restraining order to impound and destroy the pirated cassettes.
But before one is granted an injunction, there are 3 conditions that must
exist:
(a)
The Application must establish a prima facie case;
(b)
The Application must establish irreparable harm and damage which
would be occasioned if the injunction is not granted;
(c)
That the balance of convenience is in favour of the Applicant (read
the case of American Cyanide Case c. Ethikon
1.

Prima Facie Case:

On the face of it the applicant has a case. It does not mean that it is
conclusive but it means that the Applicant has a case that has a good chance
of success.
2.

Irreparable Harm:

This is harm that would be occasioned to the Applicant if an injunction is not

granted that cannot be repaired. For example if one is being evicted from
their house and it is being sold and they believe that they have a case and
that it should not be sold, if they are evicted and the house is sold before the
determination of the suit, the damage would be irreparable.
3.

Balance of Convenience

The balance of convenience must tilt in favour of the Applicant. That is if the
Applicant is the one who is likely to be more inconvenienced if an injunction is
not granted. For example in a libel case that had defamed Cheserem the
former governor of Central Bank where the governor had been libelled by a
newspaper, the Governor was likely to be more inconvenienced to his nature of
work, his standing in the community and as the Governor of the Central Bank

of Kenya who had dealings representing Kenya to the international donor

community. The newspaper on the other hand would only lose earnings which
could be paid with money but if for instance Cheserem as the Applicant was to
be denied the injunction, the damage to his reputation might be irreparable
and therefore the balance of convenience must tilt in the governors favour as
the one likely to suffer most.
APPOINTMENT OF A RECEIVER:
The term receiver is not defined in the Act but in Kerr on Receivers, a
Receiver is defined as an impartial person appointed by the court to collect
and manage rents and issues accruing from a specific subject matter for
which the court does not find that it would be reasonable for either party to
collect. It is given to a neutral person to manage by the court as the court
deems just and convenient.
Appointment of receivers is an equitable relief but also a very drastic one
because the court is taking away the rights of both parties at that time. It is
a drastic relief and can be made at the appointment of one party or both.
Normally when you approach the court to appoint a receiver, you will tell the
court what you want the receiver to do and the receiver is appointed
according to your terms or in accordance with other terms determined by the
court and depending on the case.
Appointment of receivers means that nobody wins as the receiver is supposed
to be neutral and both parties have no access to the subject matter.
Receivers have wide powers just as if they were the owners of the property
and the orders appointing them specify what they can and cannot do. There
are no safeguards set by the court but one is allowed to say what one wants
the receivers to do. One is allowed to select a receiver with professional
indemnity so that if they occasion one loss, one can claim from insurance. This
is a safeguard.
SECURITY FOR COSTS:
Order XXV Rule 1 provides for the taking of security for costs of the suit.
Order XLI provides for the taking of security for costs of the Appeal. We
are concerned with Order XXV. Where a plaintiff resides outside Kenya or

where the plaintiff does not have sufficient immoveable property within
Kenya, then the court may order that security for costs be provided. The
purpose of this rule is to provide protection of the defendant in certain cases
where in the event of success they may have difficulty realising the costs
incurred in litigation. This power is a discretionary power and is only
exercised in exceptional circumstances. It is only to be used for the
reasonable protection of the interests of the defendant.
Order XXV Rule 2 the other party will be required to furnish security to the
satisfaction of the court. If you fail to furnish security to the satisfaction of
court and the other party then your case will be dismissed. The case can be
restored when you later furnish the security.
INTERLOCUTORY PLEADINGS.