yet the source had not been stated. The statement was not defective because the source ofinformation was the insurance policy itself. The deponent had received the source. The courtsaid that it would have been prudent to attach the Policy Document.Riddlesburger CaseCaspAir v. HarrycandyIn this case the plaintiff an air pilot sued the defendant for recovery of money due to him. Thereafter the Air pilot left the country and was unable to come to the court at the time of the hearing of the case. His lawyers then applied for his evidence to be taken by way of a commission. The Affidavit supporting that application was sworn by the advocate and that affidavit contained among other things the fact that the pilot or the plaintiff was prevented by his
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duties at work an expense among other factors from being able to come to court to give evidence. That affidavit of the advocate was challenged for being defective. It was challenged on the grounds that the advocate did not state what he knew for a fact, what he was informed or what he believed. The Court of Appeal held that affidavit of the advocate was defective.2. If you are swearing an affidavit on behalf of several applicants, you must say so in theaffidavit. Mwangi King’ori v. City Council of Nairobi. If you don’t indicate that your Affidavitwill be found to be fatally defective.3. Affidavit should be in separate paragraphs so it comes out more clearly.4. It should be dated and signed and indicate the place i.e. signed in Nairobi on this day of...Mayers v. Akira Ranch LtdJohn King’ori v. City Council Civil Case No.Article by Pheroze Nowrojee – The Defective Affidavit Advocate Magazine of January 1984 page 9.Masefield Trading Co. Ltd v. Kibui Civil Case No. 1794 of 2000Decision of issue of Affidavit by Mbaluto J.Tom Okello Obondo v. NSSF H.C.C. No. 1759 of 1999Decision of Justice RingeraEastern & Southern Development Bank V. African Greenfields Ltd civil case no. 1189 of2000Decision by Hewitt J.Masefield Trading Co. Ltd v. Kibui civil case No. 1796 of 2000Justice Hewitt DecisionLabels: Civil ProcedureOTHER WAYS OF APPROACHING THE COURTORIGINATING SUMMONSAn application to the court by way of O.SThe most common way of approaching the court is by way of plaint. The Originating Summonsmethod is less common and is only used where the Civil Procedure Rules provide for it or someother statutes especially permit that method of approaching the court. It is a shortened version ofthe Plaint. The method of O.S. is intended for simpler, shorter and speedier process. Usuallywhen you approach the court of O.S. there are no witnesses and evidence is by way of Affidavit. The question for decision by the court is raised directly in the Summons and the Evidence is
raised in the Affidavit. The issues are raised in a concise manner but with sufficient particularsto enable the court identify the issues and the course of action. The remedy or relief sought isalso stated clearly therein. Order 37 Rule It is used in cases related with agreements for sale or purchase of immoveable property Order 37
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