1. This court (Amin J) delivered a partial judgment on this matter on 15/5/2017 whereby she directed the parties to file additional evidence and submit on the issue of general damages.
2. On 25th April 2023, the matter was mentioned before this Court (Sifuna J), who directed the parties to file and exchange such further or supplementary affidavits as well as such further submissions as are limited only to assisting the Court to compute the general damages.
3. In compliance, the plaintiff filed a further affidavit sworn on 4/4/2024 by Ven Rasugu, its director. In the affidavit, Mr. Rasungu attached several documents in support of the plaintiff’s claim for a sum of Kshs.19,140,000/- as general damages. The Plainitff also filed its submissions dated 4/4/2024.
4. The defendant, on its part, filed an affidavit sworn by Ariff Manji on 8/4/2024 and submissions of the same date.
5. While the Plaintiff, in its affidavit and submissions, argued that it was entitled to the amount of Kshs.19,140,000/- in general damages, the Defendant on the other hand averred that the claimed sum of Kshs. 19,140,000/- was not supported by any admissible evidence to justify the computation of the said sum, nor was any evidence produced during the trial to support the claim.
6. The defendant argued that the plaintiff failed to make a case for general damages and prayed to have the claim dismissed with costs. According to the Defendant, the Plaintiff's further affidavit and the documents produced thereby do not meet the requirements of Rule 9 of the Oaths and Statutory Declaration and therefore ought to be struck out.
Analysis and determination:
7. I have carefully considered the further affidavits as well as the submissions filed by the parties in advancement of their respective positions. I note that the task of this Court at this point is only to consider whether the Plaintiff has made a case to warrant the award of general damages in the sum of Kshs. 19,140,000/- .
8. The Plaintiff, in its further affidavit of 04/04/2024, sworn by Ven Rasugu, annexed copies of documents which it argued supported its claim for general damages. The defendant on the other hand has taken the position that that the exhibit marked ‘DM1’ in the plaintiff’s said further affidavit has been produced before the court in violation of Rule 9 of the Oaths and Statutory Declaration Rules (LN No. 374 of 1956) and therefore ought to be struck out and expunged from the court record.
9. In the circumstances, it is therefore imperative for this Court to first consider and make a determination whether the said affidavit by the Plaintiff and its annextures meet the requirements of the law.
9. Rule 9 of the Oaths and Statutory Declaration Rules provides that: -
“All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.”
10. In Francis A. Mbalanya v Cecilia N. Waema [2017] KEELC 3356 (KLR ), the court dealt with a similar issue and held that:
“14. Although the annexures have been annexed on the Supporting Affidavit, the same have not been marked and commissioned by the Commissioner for Oaths. The Defendant is seeking to have the said annextures struck off the record. Rule 9 of the Oaths and Statutory Declarations Rules provides as follows-
“all exhibits to Affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letters of identification.”
15. It is trite in law that an Affidavit and the annextures attached on it constitute evidence. Indeed, where a person seeks to prove a fact by way of Affidavit, he is obligated to exhibit any document on his Affidavit.
16. However, before such a document can be received in evidence by the court, the law requires that such a document must be sealed by the Commissioner for Oaths.
17. The law that requires the sealing and marking of annextures with serial letters is in mandatory terms, and must be complied with.
18. Although the Plaintiff’s advocate submitted that the failure to seal and mark the annextures is a defect in form that should be ignored by the court, the law has declared in mandatory terms that annextures must be sealed and numbered. That is the only way they can be allowed on record.
19. It is therefore not true, as submitted by the Plaintiff’s counsel, that the failure to seal and number the annextures is a procedural technicality that can be saved by the provisions of Article 159(2) (d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act.
20. The overriding objective in civil litigation is a policy issue which the court invokes to obviate hardship, delay and to focus on substantive justice (See Abdirahman Abdi vs. Safi Petroleum Products ltd & 6 others Civil Application No. 173 of 2010). However, the overriding objective does not mean that the courts should ignore the law and the rules which are meant to guide the manner in which parties are to move the court.
21. In the instant case, the law has provided in mandatory terms the manner in which evidence by way of annextures can be received by the court. The failure to comply with that law, like in the instant case, can only lead to one thing, the striking out of the offending documents. ”
11. I concur with the authority above. It is my view that the wording of Rule 9 of the Oaths and Statutory Declaration Rules is couched in mandatory terms, and it ensures the integrity and traceability of exhibits, which is crucial for maintaining the authenticity and organization of legal documents.
12. In this case, the plaintiff’s affidavit of 4/4/2024 produced an annexure marked as ‘DM 1’ as its evidence. However, the documents annexed to the affidavit are neither marked nor sealed in accordance with Rule 9 of the Oaths and Statutory Declarations Rules. This can only lead to the striking out of the offending documents.
13. The plaintiff, upon noting this defect, could have sought the leave of the court to file a supplementary affidavit in order to produce the documents in accordance with Rule 9 aforesaid. This was not done, and therefore, the documents produced in the affidavit are accordingly struck out.
14. In any event, I note from the record that when this matter first came up in court on 4th April 2024 before Sifuna J for highlighting of submissions, the Court in its Ruling delivered on the same day, declined to allow the subject documents to form part of the record since the Plaintiff had not sought leave of the court before filing them.
15. In this case, the court having struck out the only evidence produced by the plaintiff in its affidavit of 4/4/2024, there is, therefore, no evidence on record by the plaintiff to prove the damages it allegedly incurred.
16. General damages cannot be granted in a vacuum; the plaintiff had the sole onus of demonstrating why it sought the sum of Kshs.19,140,000/- as general damages and prove the same by way of evidence. It failed to do so.
17. Consequently, it is my finding that the Plaintiff having failed to prove, by way of credible evidence, that it suffered loss and damage to justify an award of general damages, the same is hereby declined and the prayer accordingly dismissed. I direct that each party to bear their own costs of these proceedings.
18. It therefore follows that the partial judgment delivered herein on 15/05/2017 by the Court (Amin J) is hereby confirmed as full and final, subject only to any appeal that may validly arise therefrom.
19. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
5TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – C/A
Ojienda……………..for the Plaintiff
Oloo……………for the Defendant
2. On 25th April 2023, the matter was mentioned before this Court (Sifuna J), who directed the parties to file and exchange such further or supplementary affidavits as well as such further submissions as are limited only to assisting the Court to compute the general damages.
3. In compliance, the plaintiff filed a further affidavit sworn on 4/4/2024 by Ven Rasugu, its director. In the affidavit, Mr. Rasungu attached several documents in support of the plaintiff’s claim for a sum of Kshs.19,140,000/- as general damages. The Plainitff also filed its submissions dated 4/4/2024.
4. The defendant, on its part, filed an affidavit sworn by Ariff Manji on 8/4/2024 and submissions of the same date.
5. While the Plaintiff, in its affidavit and submissions, argued that it was entitled to the amount of Kshs.19,140,000/- in general damages, the Defendant on the other hand averred that the claimed sum of Kshs. 19,140,000/- was not supported by any admissible evidence to justify the computation of the said sum, nor was any evidence produced during the trial to support the claim.
6. The defendant argued that the plaintiff failed to make a case for general damages and prayed to have the claim dismissed with costs. According to the Defendant, the Plaintiff's further affidavit and the documents produced thereby do not meet the requirements of Rule 9 of the Oaths and Statutory Declaration and therefore ought to be struck out.
Analysis and determination:
7. I have carefully considered the further affidavits as well as the submissions filed by the parties in advancement of their respective positions. I note that the task of this Court at this point is only to consider whether the Plaintiff has made a case to warrant the award of general damages in the sum of Kshs. 19,140,000/- .
8. The Plaintiff, in its further affidavit of 04/04/2024, sworn by Ven Rasugu, annexed copies of documents which it argued supported its claim for general damages. The defendant on the other hand has taken the position that that the exhibit marked ‘DM1’ in the plaintiff’s said further affidavit has been produced before the court in violation of Rule 9 of the Oaths and Statutory Declaration Rules (LN No. 374 of 1956) and therefore ought to be struck out and expunged from the court record.
9. In the circumstances, it is therefore imperative for this Court to first consider and make a determination whether the said affidavit by the Plaintiff and its annextures meet the requirements of the law.
9. Rule 9 of the Oaths and Statutory Declaration Rules provides that: -
“All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.”
10. In Francis A. Mbalanya v Cecilia N. Waema [2017] KEELC 3356 (KLR ), the court dealt with a similar issue and held that:
“14. Although the annexures have been annexed on the Supporting Affidavit, the same have not been marked and commissioned by the Commissioner for Oaths. The Defendant is seeking to have the said annextures struck off the record. Rule 9 of the Oaths and Statutory Declarations Rules provides as follows-
“all exhibits to Affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letters of identification.”
15. It is trite in law that an Affidavit and the annextures attached on it constitute evidence. Indeed, where a person seeks to prove a fact by way of Affidavit, he is obligated to exhibit any document on his Affidavit.
16. However, before such a document can be received in evidence by the court, the law requires that such a document must be sealed by the Commissioner for Oaths.
17. The law that requires the sealing and marking of annextures with serial letters is in mandatory terms, and must be complied with.
18. Although the Plaintiff’s advocate submitted that the failure to seal and mark the annextures is a defect in form that should be ignored by the court, the law has declared in mandatory terms that annextures must be sealed and numbered. That is the only way they can be allowed on record.
19. It is therefore not true, as submitted by the Plaintiff’s counsel, that the failure to seal and number the annextures is a procedural technicality that can be saved by the provisions of Article 159(2) (d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act.
20. The overriding objective in civil litigation is a policy issue which the court invokes to obviate hardship, delay and to focus on substantive justice (See Abdirahman Abdi vs. Safi Petroleum Products ltd & 6 others Civil Application No. 173 of 2010). However, the overriding objective does not mean that the courts should ignore the law and the rules which are meant to guide the manner in which parties are to move the court.
21. In the instant case, the law has provided in mandatory terms the manner in which evidence by way of annextures can be received by the court. The failure to comply with that law, like in the instant case, can only lead to one thing, the striking out of the offending documents. ”
11. I concur with the authority above. It is my view that the wording of Rule 9 of the Oaths and Statutory Declaration Rules is couched in mandatory terms, and it ensures the integrity and traceability of exhibits, which is crucial for maintaining the authenticity and organization of legal documents.
12. In this case, the plaintiff’s affidavit of 4/4/2024 produced an annexure marked as ‘DM 1’ as its evidence. However, the documents annexed to the affidavit are neither marked nor sealed in accordance with Rule 9 of the Oaths and Statutory Declarations Rules. This can only lead to the striking out of the offending documents.
13. The plaintiff, upon noting this defect, could have sought the leave of the court to file a supplementary affidavit in order to produce the documents in accordance with Rule 9 aforesaid. This was not done, and therefore, the documents produced in the affidavit are accordingly struck out.
14. In any event, I note from the record that when this matter first came up in court on 4th April 2024 before Sifuna J for highlighting of submissions, the Court in its Ruling delivered on the same day, declined to allow the subject documents to form part of the record since the Plaintiff had not sought leave of the court before filing them.
15. In this case, the court having struck out the only evidence produced by the plaintiff in its affidavit of 4/4/2024, there is, therefore, no evidence on record by the plaintiff to prove the damages it allegedly incurred.
16. General damages cannot be granted in a vacuum; the plaintiff had the sole onus of demonstrating why it sought the sum of Kshs.19,140,000/- as general damages and prove the same by way of evidence. It failed to do so.
17. Consequently, it is my finding that the Plaintiff having failed to prove, by way of credible evidence, that it suffered loss and damage to justify an award of general damages, the same is hereby declined and the prayer accordingly dismissed. I direct that each party to bear their own costs of these proceedings.
18. It therefore follows that the partial judgment delivered herein on 15/05/2017 by the Court (Amin J) is hereby confirmed as full and final, subject only to any appeal that may validly arise therefrom.
19. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
5TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – C/A
Ojienda……………..for the Plaintiff
Oloo……………for the Defendant