Otieno v Otieno (Civil Appeal E125 of 2024) [2024] KEHC 8539 (KLR) (15 July 2024) (Ruling)

The court ruled that the Appellant's notice of motion (Civil Appeal E125 of 2024) was fatally defective under Order 51 Rule 4 of the Kenya High Court Rules. The application failed to disclose the grounds of the motion and did not properly reference the supporting affidavit, which was sworn on 21st June 2024—two days after the application was signed. The court struck out the application with no cost orders, noting the future-dated affidavit was non-existent at the time of filing. The ruling applies equally to Kisumu HCCA No. E125/24.

The court ruled on the application's compliance with Order 51 Rule 4, which requires that the notice of motion state the grounds and include a copy of any supporting affidavit. The application was found to be incurably and fatally defective because it did not disclose the grounds or the person on whose affidavit it was based, and the attached affidavit was sworn on 21st June 2024, which was non-existent at the time of the application. As a result, the application was struck out.

The court found the Appellant's application incurably and fatally defective for not disclosing the grounds of the application and failing to serve the required affidavit under Order 51 Rule 4. The application was struck out with no orders as to costs.

The application is struck out with no orders as to costs.

The court applied Order 51 Rule 4 of the High Court Rules, which requires that every notice of motion must state the grounds in general terms and include a copy of any supporting affidavit. The application was found defective because it failed to disclose the grounds and used an affidavit that was non-existent at the time of the application.

Civil Procedure Rules

M. S. Shariff