IN RE THE MATTER OF UNITED INSURANCE COMPANY LIMITED [2007] eKLR

Key Facts

Issues

• Whether the supporting affidavit by George Ngure Kariuki was valid under Section 4 of the Oaths and Statutory Declarations Act. The affidavit was commissioned by an advocate from the same firm that drafted it, and there was no authority from the company authorizing the affidavit.
• Whether the notice of motion was properly brought under the correct procedural rules (Order IV rule 13 and Rule 7(1) of the Companies Winding Up Rules) and whether the court had jurisdiction to strike out the winding-up petition. The application cited Order L instead of the correct rules, and the method of filing was questioned.

Holdings

• The court found the affidavit of George Ngure Kariuki, filed in support of the notice of motion, to be incompetent and required to be struck out and expunged from the record. This was due to the affidavit being commissioned by Regina Boisabi Oyaro of Maanzo & Company Advocates, the same firm that drafted it, which contravened Section 4 of the Oaths and Statutory Declarations Act.
• The court ruled that the notice of motion dated 2nd November 2007 is incompetent and an abuse of the court process, and accordingly struck it out. This determination was based on the application being brought under incorrect procedural rules and the supporting affidavit being improperly commissioned by an advocate from the same firm, violating Section 4 of the Oaths and Statutory Declarations Act.

Remedies

Legal Principles

• The court applied the principle of substance over form by determining that the notice of motion was properly brought under the Companies (Winding Up) Rules despite the procedural conflict with the Civil Procedure Rules.
• The affidavit was found incompetent as it was commissioned by an advocate from the same firm, violating Section 4 of the Oaths and Statutory Declarations Act, which is a matter of admissibility and competence.
• The motion was ruled an abuse of the court process because it was a reply to the winding up petition and should have been addressed within the petition itself, not as a separate motion.

Precedent Name

• Bunson Travel Service Limited and Others vs Kenya Airways Limited
• Benja Properties Limited vs Savings & Loan Kenya Limited
• In the Matter of Yorkhouse Properties Company Limited
• Tabutany Cherono Kiget & Others vs Grace Chemutai Kiget
• Kenya Commercial Bank Limited v Addo & Another
• Dr. Moses Njue Gachoki & Another vs The Registrar & 2 Others
• Law Society of Kenya vs Commissioner of Lands & Others
• Paul Nganga Ndetei vs H F C K
• Prafula Enterprises Limited vs Norlake Investments Limited & Another

Cited Statute

• Companies Act (Chapter 486) of the Laws of Kenya
• Companies (Winding Up) Rules (Rule 7(1), Rule 203)
• Oaths and Statutory Declarations Act (Cap 15) of the Laws of Kenya
• Civil Procedure Rules (Order L Rule 1 and 2, Order IV Rule 13)
• Insurance Act (Chapter 487) of the Laws of Kenya

Judge Name

Passage Text

• For all the aforestated reasons, I uphold the preliminary objection and rule that the notice of motion dated 2nd November 2007, is incompetent and an abuse of the process of the court. It is accordingly struck out.
• In the motion Order L rule 1 and 2 of the Civil Procedure Rules were cited. That order however, is not relevant to an application to strike out pleadings which ought to be brought under Order IV rule 13 of the Civil Procedure Rules. Moreover, under Rule 16 of the same order such an application ought to be brought by way of chamber summons.
• I find that the commission contravenes Section 4 of the Oaths and Statutory Declarations Act. For this reason the affidavit is incompetent and must be struck out and expunged from the record. Without the supporting affidavit the motion cannot stand.