[2006] KEHC 1863 (KLR)
The court held that the failure by the plaintiffs to file the verifying affidavit within the period allowed by the court was a procedural lapse and not a jurisdictional defect. The court emphasized that the use of the word 'may' in Order VII Rule 1(3) of the Civil Procedure Rules confers discretion on the court to...
Source-derived case information.
- Citation
- [2006] KEHC 1863 (KLR)
- Parties
- Plaintiff: Agricultural Finance Corporation; Plaintiff: Agricultural Developing Corporation; Defendant: Drive-In Estate Developers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 115 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Verifying Affidavit and Plaint
- Outcome
- application dismissed
- Legal Topics
- Verifying Affidavit, Striking Out Pleadings, Judicial Discretion, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agricultural Finance Corporation
Plaintiff
Agricultural Developing Corporation
Plaintiff
Drive-In Estate Developers Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Verifying Affidavit and Plaint
Legal Issues
- 1 Whether failure to file a compliant verifying affidavit within the period allowed by the court is fatal and should result in the striking out of the plaint.
- 2 Whether the late filing of the verifying affidavit without leave is a procedural lapse or a jurisdictional defect.
Ratio Decidendi
The court held that the failure by the plaintiffs to file the verifying affidavit within the period allowed by the court was a procedural lapse and not a jurisdictional defect. The court emphasized that the use of the word 'may' in Order VII Rule 1(3) of the Civil Procedure Rules confers discretion on the court to determine whether to strike out a plaint for non-compliance. Since the defendant did not demonstrate any prejudice that could not be compensated by costs, and the lapse did not affect the court's jurisdiction, the court exercised its discretion in favor of the plaintiffs. The verifying affidavit filed out of time was deemed duly filed with leave of the court, and the application...
Court Disposition
application dismissed
Orders
- The defendant's application dated and filed on 29.6.2005 is dismissed.
- The verifying affidavit filed on 21.7.2005 is deemed duly filed with leave of the court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 115 of 2001
AGRICULTURAL FINANCE CORPORATION……....................................................…..1ST PLAINTIFF
AGRICULTURAL DEVELOPING CORPORATION.…...................................................2ND PLAINTIFF
VERSUS
DRIVE-IN ESTATE DEVELOPERS LTD………....................................................…….. DEFENDANT
R U L I N G
This is an application by the defendant to strike out the plaintiff’s verifying affidavit, and the suit herein on the basis that the said verifying affidavit was filed outside the time allowed in the order granting leave to file the same. The application is expressed to be brought under the provisions of Orders L rule 1 VIA rule 6, Sections 3A and 63 (e) of the Civil Procedure Act and all other enabling provisions of the Law.
The origin of this application goes back to the order of my Learned brother Emukule J made on 4. 5.2005. By that order the Learned Judge granted the plaintiff leave to file a further compliant verifying affidavit within 10 days of his order. The compliant verifying affidavit should therefore have been filed by the 14. 5.2005. The defendant says that the purported verifying affidavit was filed on 21. 7.05 without leave. In the premises the plaint remains unaccompanied with a verifying affidavit as required under Order VII rule 2 of the Civil Procedure Rules. Hence the application to strike out the plaint.
For the plaintiff it was argued that the failure to file the compliant verifying affidavit within the time allowed by the court is a minor procedural lapse which does not go to jurisdiction and should be ignored.
So the only issue for determination is whether or not failure to file the compliant verifying affidavit within the period allowed by the court is fatal and should result in the striking out of the plaint. The requirement for a verifying affidavit is contained in Order VII rule 1 (2) of the Civil Procedure Rules. Sub-rule (3) of the same rule reads:
“The court may of its own motion or on the application of the defendant order to be struck out any plaint which does not comply with subrule (2) of this rule.”
In my view the use of the word “may” shows that the court has a discretion as to whether or not to strike out a plaint which is not accompanied by an affidavit verifying the correctness of the averments contained in the plaint. As it has been said by several eminent judges before me, in exercising the discretion give in sub-rule (3) of rule 1 of Order VII of the Civil Procedure Rules the court should be alive to the principle of justice that procedural lapses, omissions and irregularities unless they go to the jurisdiction of the court or prejudice the adversary in a fundamental respect which cannot be atoned for by an award of costs are not to be taken as nullifying the proceedings affected.
In the present case the compliant verifying affidavit was filed slightly over 2 months too late without leave. Strictly speaking therefore the affidavit is irregularly on this record and the plaintiff has not explained the reasons for its failure to comply with the order of the court. However, in my view the failure to file the affidavit within the period allowed by the court, still remains a procedural lapse and does not go to the jurisdiction of the court. The defendant has also not demonstrated that it will suffer prejudice which cannot be atoned for by an award of costs.
I am aware that the plaintiff is having a second bite at the cherry but that alone cannot incline me to strike out the affidavit and the suit. That result in my view would appear not to be equal to the lapse committed by the plaintiff. Accordingly, in the exercise of my discretion under Order VII Rule 1 (3) of the Civil Procedure Rules, I decline to strike out the said verifying affidavit and plaint. In the interest of justice I order that the verifying affidavit filed on 21. 7.2005 be and is hereby deemed duly filed with the leave of the court.
The defendant’s application dated and filed on 29. 6.2005 is dismissed. As the application was not altogether without merit I award the costs of the application to the defendant.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 10TH day of JULY, 2006.
F. AZANGALALA
JUDGE
10. 7.2006
Read in the presence of:-