RUTH WANJIRU NJOROGE & ANOTHER V ATTORNEY GENERAL & 3 OTHERS[2012]eKLR

Key Facts

Issues

• The court considered whether the application to dismiss the suit was incurably and fatally defective due to not specifying the applicant or defendant, and whether the supporting affidavit by an advocate on behalf of the client was permissible under the law.
• The court found the application to dismiss the entire suit lacked merit, as the 1st plaintiff's case was independent.
• The court considered whether a partner in a law firm witnessing a colleague's affidavit is unprofessional, noting that it's against ethical practices but not rendering the affidavit defective per se.
• The court evaluated if the application was overtaken by the 2nd plaintiff's withdrawal notice, concluding it didn't affect the striking out motion as the withdrawal was subsequent.
• The court ruled that the costs of the application would be borne by the first plaintiff.
• The court examined if an advocate swearing an affidavit in place of a client is prohibited, referencing Section 134 of the Advocates Act and noting exceptions for legal/factual matters, though it's an undesirable practice.
• The court determined that the 1st plaintiff's suit against the 4th defendant still subsists, as it's not dependent on the 2nd plaintiff's existence.

Holdings

• The application to dismiss the entire suit lacked merit because the 1st plaintiff's claim is not dependent on the 2nd plaintiff's dissolved company. The court rejected the argument that the two plaintiffs are legally linked.
• The suit by the 1st plaintiff against the 4th defendant remains subsisting as it is independent of the 2nd plaintiff's dissolved company status. The court clarified the legal distinction between the two plaintiffs.
• Affidavits drawn by one Advocate's firm should be witnessed by an independent person to maintain ethical standards, though internal witnessing does not automatically render the affidavit defective.
• The costs of the application shall be borne by the first plaintiff, as determined by the court's final ruling.
• Advocates lose their privilege and protection under Section 134 of the Evidence Act by making affidavits on behalf of their clients. However, this practice is not per se fatal unless challenged and upheld.
• The application is not incurably and fatally defective by failure to indicate who is an Applicant or Defendant. The court emphasized that while proper drafting is ideal, such omissions do not prejudice parties and should not mechanically invalidate proceedings.
• The Notice of Withdrawal and Discontinuance of the suit by the 2nd plaintiff did not affect the Motion for striking out the suit against the 2nd plaintiff, as the withdrawal occurred after the Motion was filed.

Remedies

• The costs of the application are to be borne by the first plaintiff (Ruth Wanjiru Njoroge).
• The 1st plaintiff's suit against the 4th defendant (Kishanto Ole Suuji) remains subsisting.
• The suit by the 2nd plaintiff (Muguga High School Company Limited) was struck out with costs to the 3rd defendant (Jemimah Njeri Njoroge).

Legal Principles

• The court held that once a limited liability company is dissolved (e.g., via striking off by the Registrar of Companies), it ceases to exist as a legal entity and loses the capacity to sue or be sued. This principle was reinforced by reference to the case SIETCO (K) LTD VS. FORTUNE COMMODITIES LTD [2005] eKLR.
• Under Section 134 of the Advocates Act (Cap. 80), advocates generally retain privilege in client communications, but this protection is waived when an advocate swears an affidavit in place of their client. The court acknowledged this rule but noted the affidavit's content (e.g., Gazette Notices) did not necessarily breach privilege, though the practice is discouraged.

Precedent Name

Cited Statute

• Advocates Act (Cap. 80, Laws of Kenya)
• Business Names Registration Act (Cap. 499, Laws of Kenya)
• Companies Act (Cap. 486, Laws of Kenya)

Judge Name

Passage Text

• The latter is a creation of the Companies Act the former, the creation of the Business Names Registration Act (Cap. 499, Laws of Kenya). It is thus possible that the 1st plaintiff is indeed a member and shareholder of Muguga High School a business name. For that reason, her suit is not dependent upon the existence or otherwise of the 2nd plaintiff.
• I would therefore strike out the suit by the 2nd plaintiff with costs to the 3rd Defendant.
• In this case the Notice of Withdrawal and Continuance of suit did not affect the Motion for striking out the suit against the 2nd plaintiff,