Introduction and Background
1. I have carefully considered the Notice of Preliminary Objection dated 14th October 2025, raised by the Advocate. The objection challenges the propriety of the Replying Affidavit sworn by the Client on 16th September 2025, contending that filing fees were not paid on the same and as such the affidavit was improperly filed and therefore ought to be struck out.
2. The Client, however, maintains that the objection is not based on a pure point of law but rather on disputed factual assertions. According to the Client, the propriety of the filing of the affidavit requires an evidentiary inquiry, and thus the matter cannot be disposed of by way of a preliminary objection.
3. The governing principle on preliminary objections is well settled in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696. The Court in that case held that a preliminary objection must be founded on a pure point of law, arise from the pleadings or by clear implication out of them and be capable of disposing of the suit if upheld. A preliminary objection is therefore not the forum for contested factual matters. It is reserved for clear-cut legal issues that can be determined without recourse to evidence.
4. The affidavit in question is part of the official Court record. Court records are presumed to be authentic and accurate representations of the pleadings and filings made by the parties. They are amenable to judicial notice and do not require evidentiary proof. The specific issue raised here is whether the filing fees for the Replying Affidavit were paid. This is not a factual dispute requiring oral testimony or affidavit evidence. It is a matter that can be directly ascertained from the Court’s Case Tracking System (CTS).
5. Since the payment of filing fees is a threshold legal requirement, the objection is properly framed as a preliminary objection and ripe for determination.
6. Moving to the substance of the objection, the law is clear that payment of Court filing fees is a jurisdictional prerequisite. In Pascal Obonyo Agwena & 4 Others v Simon Juma Odiyo [2020] eKLR, the Court emphasized that documents filed without payment of requisite fees are not properly before the Court.
7. The CTS record indicates that the filing fees for the Replying Affidavit sworn on 16th September 2025 were marked as “NOT PAID.” In the absence of evidence to the contrary, the affidavit cannot be deemed properly filed.
8. Be that as it may, Section 96 of the Civil Procedure Act provides the Court with discretion to allow rectification of such procedural defects by permitting payment of the requisite fees. It provides as follows:
“Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person by whom such fee is payable to pay the whole or part, as the case may be, of the fee; and upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance”.
9. This provision is meant to ensure that parties are not unduly prejudiced by technical lapses, provided the defect is cured before substantive proceedings continue.
Disposition
10. Accordingly, I find that the Replying Affidavit sworn on 16th September 2025 was filed without payment of the requisite Court fees. Consequently, the affidavit is not properly before the Court in its current state.
11. However, pursuant to Section 96 of the Civil Procedure Act, the Client is directed to pay the requisite filing fees and present evidence of such payment before the Court. Only upon compliance will the Replying Affidavit be deemed to be properly filed and the matter allowed to proceed further.
1. I have carefully considered the Notice of Preliminary Objection dated 14th October 2025, raised by the Advocate. The objection challenges the propriety of the Replying Affidavit sworn by the Client on 16th September 2025, contending that filing fees were not paid on the same and as such the affidavit was improperly filed and therefore ought to be struck out.
2. The Client, however, maintains that the objection is not based on a pure point of law but rather on disputed factual assertions. According to the Client, the propriety of the filing of the affidavit requires an evidentiary inquiry, and thus the matter cannot be disposed of by way of a preliminary objection.
3. The governing principle on preliminary objections is well settled in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696. The Court in that case held that a preliminary objection must be founded on a pure point of law, arise from the pleadings or by clear implication out of them and be capable of disposing of the suit if upheld. A preliminary objection is therefore not the forum for contested factual matters. It is reserved for clear-cut legal issues that can be determined without recourse to evidence.
4. The affidavit in question is part of the official Court record. Court records are presumed to be authentic and accurate representations of the pleadings and filings made by the parties. They are amenable to judicial notice and do not require evidentiary proof. The specific issue raised here is whether the filing fees for the Replying Affidavit were paid. This is not a factual dispute requiring oral testimony or affidavit evidence. It is a matter that can be directly ascertained from the Court’s Case Tracking System (CTS).
5. Since the payment of filing fees is a threshold legal requirement, the objection is properly framed as a preliminary objection and ripe for determination.
6. Moving to the substance of the objection, the law is clear that payment of Court filing fees is a jurisdictional prerequisite. In Pascal Obonyo Agwena & 4 Others v Simon Juma Odiyo [2020] eKLR, the Court emphasized that documents filed without payment of requisite fees are not properly before the Court.
7. The CTS record indicates that the filing fees for the Replying Affidavit sworn on 16th September 2025 were marked as “NOT PAID.” In the absence of evidence to the contrary, the affidavit cannot be deemed properly filed.
8. Be that as it may, Section 96 of the Civil Procedure Act provides the Court with discretion to allow rectification of such procedural defects by permitting payment of the requisite fees. It provides as follows:
“Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person by whom such fee is payable to pay the whole or part, as the case may be, of the fee; and upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance”.
9. This provision is meant to ensure that parties are not unduly prejudiced by technical lapses, provided the defect is cured before substantive proceedings continue.
Disposition
10. Accordingly, I find that the Replying Affidavit sworn on 16th September 2025 was filed without payment of the requisite Court fees. Consequently, the affidavit is not properly before the Court in its current state.
11. However, pursuant to Section 96 of the Civil Procedure Act, the Client is directed to pay the requisite filing fees and present evidence of such payment before the Court. Only upon compliance will the Replying Affidavit be deemed to be properly filed and the matter allowed to proceed further.