[2006] KEHC 2874 (KLR)
The court held that the essential requirement under Order VII Rule 2 of the Civil Procedure Rules is that a plaint must be accompanied by a verifying affidavit at the time of filing. The fact that the verifying affidavit was sworn on a date prior to the date of the plaint does not render the suit defective, provided...
Source-derived case information.
- Citation
- [2006] KEHC 2874 (KLR)
- Parties
- Plaintiff: Argan Wekesa Okumu; Defendant: Dima College; Defendant: Mundia Gateria; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 192 of 2004
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JL Osiemo
- Legal Topics
- Preliminary Objection, Verifying Affidavit, Defamation, Pleadings Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Argan Wekesa Okumu
Plaintiff
Dima College
Defendant
Mundia Gateria
Defendant
Nation Media Group Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is incurably defective for being accompanied by a verifying affidavit dated prior to the plaint.
- 2 Whether the disparity in dates between the plaint and verifying affidavit renders the suit incompetent.
Ratio Decidendi
The court held that the essential requirement under Order VII Rule 2 of the Civil Procedure Rules is that a plaint must be accompanied by a verifying affidavit at the time of filing. The fact that the verifying affidavit was sworn on a date prior to the date of the plaint does not render the suit defective, provided both documents are filed together. The court found no defect in the suit as the verifying affidavit accompanied the plaint when filed. Consequently, the preliminary objection raised by the 3rd defendant was found to lack merit and was dismissed with costs.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 192 of 2004
ARGAN WEKESA OKUMU………………….……………….……………PLAINTIFF
VERSUS
DIMA COLLEGE…………………………………………………....1ST DEFENDANT
MUNDIA GATERIA………………………………….……………..2ND DEFENDANT
NATION MEDIA GROUP LIMITED………...……………………3RD DEFENDANT
RULING
The plaintiff filed this suit by way of a plaint against the 3 defendant seeking:
(a) General damages for defamatory statement
(b) Costs of the suit
(c) Interest both on (a) and (b) above
(d) Any other or better relief this Honourable Court may deem fit.
The plaintiff was dated 27th February 2004 and filed the same date. It was accompanied by verifying affidavit dated 20th February 2004 but filed together with the plaint on 27th February 2004.
Mr. Obura, counsel for the 3rd defendant raised a preliminary objection suit on the ground that it is incurably defective and bad in law. He submitted that the suit is incurably defective in that the plaint is not accompanied by verifying affidavit in contravention of Order VII Rule 2 which provides:-
“VII (2). The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in the plaint.”
The plaint is accompanied by a verifying affidavit sworn by the plaintiff in compliance with Order VII Rule 1(e) and Rule 2 and filed the same date with the plaint. The only quarrel by counsel is that the plaint is dated 27th February 2004 while the verifying affidavit is dated 20th February 2004. Counsel submitted that at the point the alleged affidavit was sworn the plaint had not been drawn.
Mr. Nyakundi counsel for the plaintiff in opposing the Preliminary Objection submitted that the plaint is not defective as the same was properly filed accompanied with verifying affidavit but he conceded that there is a disparity in dating but both were filed at the same time.
Order VII Rule 2 of the Civil Procedure Rules is very clear that the plaint to be accompanied with affidavit verifying the correctness of the averments contained in the plaint. The plaintiff’s plaint was accompanied with a verifying affidavit at the time the same was filed. I see no defect. The defendant’s Preliminary Objection has not merit and the same is therefore dismissed with costs.
Dated and delivered at Nairobi this 21st day of February 2006.
J.L.A. OSIEMO
JUDGE