[2013] KEHC 412 (KLR)
The court found that dismissing the suit on the basis of an unsigned plaint and missing verifying affidavit would be an undue technicality, particularly where the omission was explained and did not cause prejudice. The court emphasized the need to uphold substantive justice over procedural technicalities, in line...
Source-derived case information.
- Citation
- [2013] KEHC 412 (KLR)
- Parties
- Plaintiff: Bonface Ochieng Oriaro; Defendant: Peninah Atieno
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 11 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint and Preliminary Objection
- Outcome
- Application to amend plaint allowed; preliminary objection dismissed.
- Legal Topics
- Amendment of Pleadings, Unsigned Pleadings, Verifying Affidavit, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Ochieng Oriaro
Plaintiff
Peninah Atieno
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint and Preliminary Objection
Legal Issues
- 1 Whether the court should allow the plaintiff to amend the plaint to sign, date, and file the necessary verifying affidavit.
- 2 Whether the preliminary objection based on unsigned plaint and lack of verifying affidavit should be upheld.
Ratio Decidendi
The court found that dismissing the suit on the basis of an unsigned plaint and missing verifying affidavit would be an undue technicality, particularly where the omission was explained and did not cause prejudice. The court emphasized the need to uphold substantive justice over procedural technicalities, in line with Article 159(d) of the Constitution and relevant statutory provisions. The authorities cited by the plaintiff supported the position that such defects are curable by amendment, while the defendant's authority was considered outdated and inconsistent with the current legal framework. Accordingly, the application to amend the plaint was allowed and the preliminary objection was...
Court Disposition
Application to amend plaint allowed; preliminary objection dismissed.
Orders
- Leave granted to the plaintiff to amend the plaint by signing, dating, and filing the necessary verifying affidavit.
- The preliminary objection dated 5/5/2008 is dismissed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HCC NO. 11 OF 2013
BONFACE OCHIENG ORIARO..................................................PLAINTIFF
VERSUS
PENINAH ATIENO..............................................................DEFENDANT
RULING
This a ruling on an application filed here by way of a summons in chambers on 22/9/2008. The ruling also concerns a preliminary objection dated 5/5/2008 and filed on the same date.
The chamber summons seeks, interalia, for leave to amend plaint. The amendment sought consists in dating and signing the plaint and filing the necessary verifying affidavit. Provision for costs is also sought.
From the grounds advanced and the affidavit sworn in support of the application, it is clear that the plaintiff's side inadvertently forgot to sign and date the plaint. It is clear that the necessary verifying affidavit was not filed.
It would appear that the plaintiff/applicant anticipated what the defendant/objector might say to support the preliminary objection filed on 5/5/2008. I say so because during hearing the same issues raised in the application were raised while arguing the preliminary objection. The preliminary objection had actually been filed earlier than the application.
Apart from the preliminary objection, the defendant/respondent also filed grounds of opposition to the application herein. The grounds of opposition were filed on 17/10/2008, which is about a month after the filing of the application.
The grounds of opposition termed the application as fatally defective and unmerited. The application was also said to be an after – thought and overtaken by events. Delay was also alleged and the suit was said to be non-existent since the plaint was unsigned.
The Court heard both sides on 10/7/2013. Each side reiterated much that is contained in what was laid before me in writing. In addition however, the plaintiff's side availed two decided authorities while the defendant's side availed one.
The two decided authorities availed by the plaintiff's side were
(a) ANYANGO ACHACHA VS ANTONY KIIGO NJIRU & ANOR: HCC NO.59/01, KISUMU
(b) MWATHI WANYOIKE & ANOR. VS EDWARD ODERA ONGONDO & ANOR HCC NO.45/03, KISUMU
These two authorities concerned pleadings that had the same issues as the pleadings herein. The court allowed amendment or rectification.
The defendant's side availed the decided case of ATUL KUMAR MAGANLAL SHAH VS INVESTMENT & MORTGAGES BANK LIMITED & OTHERS: C.A NO.13/01, NAIROBI.
This authority concerned unsigned pleadings also. The court of appeal stated that the position in Kenya is that an unsigned pleading can lead to dismissal of a suit. The Court of Appeal held that position despite its analysis of positions in other jurisdictions which showed an opposite view.
I have considered all what was laid before me. I would hesitate very much to dismiss a suit on such a technicality particularly where, as in this case, it is explained well how the mistake arose. The authority availed by the defendant's side espouse a rigidity that would cause an injustice. It is an authority that was decided long ago before the new Constitutional dispensation. It would be against the spirit of article 159(d) of our constitution to hold that procedural omission as enough to warrant dismissal of the suit herein. I apprehend that that would also offend the letter of Section 19 of Environment and Land COURT ACT which de-emphasizes this Court's adherence to technicalities of procedure and Rules of Evidence. It appears to me that this is the same spirit embraced by Sections 1A, 1B and 3A of Civil Procedure Act (Cap 21)
Bearing all this in mind, the application herein is allowed and the preliminary objection is dismissed.
A.K. KANIARU – JUDGE
10/12/2013
10/12/2013
A.K. Kaniaru – Judge
Dianga G. - C/C
No party – Present
Interpretation: English/Kiswahili
Odeny for Respondent/Defendant
Mwamu for Plaintiff/Applicant
COURT: Ruling on chamber Summons filed on 22/9/2008 and preliminary objection dated 5/5/2008 filed on the same date read and delivered in open COURT. Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
10/12/2013