[2011] KEHC 690 (KLR)
The court held that although the counterclaim was filed before the Civil Procedure Rules 2010 came into effect, it was still necessary for it to be accompanied by a verifying affidavit, as a counterclaim is akin to a plaint. However, the court found that the absence of a verifying affidavit and title did not render...
Source-derived case information.
- Citation
- [2011] KEHC 690 (KLR)
- Parties
- Plaintiff: Bridge-Up Container Services Ltd; Defendant: C.F.C. Stanbic Bank Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 233 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Counterclaim
- Outcome
- Application to strike out counterclaim declined; leave granted to amend counterclaim; costs awarded to plaintiff.
- Judges
- GG Okwengu
- Legal Topics
- Counterclaim Requirements, Verifying Affidavit, Civil Procedure Rules, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bridge-Up Container Services Ltd
Plaintiff
C.F.C. Stanbic Bank Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Counterclaim
Legal Issues
- 1 Whether a counterclaim filed before the Civil Procedure Rules 2010 required a verifying affidavit.
- 2 Whether the absence of a verifying affidavit and title renders the counterclaim fatally defective.
- 3 Whether the defendant should be granted leave to amend the counterclaim.
Ratio Decidendi
The court held that although the counterclaim was filed before the Civil Procedure Rules 2010 came into effect, it was still necessary for it to be accompanied by a verifying affidavit, as a counterclaim is akin to a plaint. However, the court found that the absence of a verifying affidavit and title did not render the counterclaim fatally defective. In the interest of justice, the court exercised its discretion to allow the defendant an opportunity to amend the defence and counterclaim and provide the appropriate verifying affidavit, rather than striking out the counterclaim. The defendant was ordered to file the amended documents within seven days and to pay the costs of the motion to...
Court Disposition
Application to strike out counterclaim declined; leave granted to amend counterclaim; costs awarded to plaintiff.
Orders
- Defendant to file an amended defence and counterclaim with verifying affidavit within 7 days.
- Defendant to pay costs of the motion to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCC NO. 233 OF 2010
BRIDGE-UP CONTAINER SERVICES LTD..................................................................PLAINTIFF
VERSUS
C.F.C. STANBIC BANK LTD.......................................................................................DEFENDANT
R U L I N G
1. By a notice of motion dated 4th February, 2011, the plaintiff seeks to have the defendant’s counterclaim dated 25th August, 2010 struck out with costs. It is contended that the counterclaim is defective as it has no title nor is it supported by a verifying affidavit. The defendant has filed grounds of opposition objecting to the application, contending that there was no legal requirement for a verifying affidavit at the time the defence and counterclaim was filed. It is maintained that the application is incompetent as it purports to apply the Civil Procedure Rules 2010 which were not in force at the time the defence and counterclaim were filed. Thus the application is frivolous, vexatious and an abuse of the court process.
2. Relying on Nahyer Shariff Hassan Alwi vs. Housing Finance Company Limited & 2 Others - Civil Suit No. 269 of 2009 it was argued that a counter claim is a cross suit which has a separate life from the plaint. It should therefore be supported by a verifying affidavit as required under Order VII Rule 2 (2) of the former Civil Procedure Rules.
3. I have given due consideration to this application. I take note of the fact that the defence which raises the counterclaim was filed on the 26th August, 2010. This was before the Civil Procedure Rules 2010 came into effect. Nonetheless a counterclaim is a statement of claim by the defendant against the plaintiff. It bears all the characteristics of a plaint except that it is a claim brought up after the plaintiff’s claim, and filed partly in response to the plaintiff’s claim.
4. Notwithstanding the fact that Order VII Rule 2 of the former edition of the Civil Procedure Rules which provided for the swearing of a verifying affidavit made no reference to a counterclaim, a counterclaim being the document initiating the counter suit against the plaintiff, must of necessity be accompanied by the verifying affidavit, verifying the correctness of the averments contained in the counterclaim. Order 7 Rule 5 (a) of the Civil Procedure Rules 2010 has only reinforced this position by specifically providing for a verifying affidavit. Therefore the filing of the counterclaim without a verifying affidavit renders the defendant’s counterclaim defective. It is also evident that Order 7 Rule 8 of the Civil Procedure Rules 2010 makes specific provides for title of counterclaim. The defence filed has not complied with this provision.
5. In my view, the above defects are not fatal. It is evident to me that the ends of justice will be met by giving the defendant an opportunity to amend the defence and counterclaim and provide an appropriate verifying affidavit. Accordingly, I decline to grant the motion dated 4th February, 2011. I order that the defendant shall file an amended defence and counterclaim within 7 days from the date hereof. The defendant shall pay costs of the motion to the plaintiff.
6. Those shall be the orders of this court.
Dated, Signed and delivered this 31st day of October, 2011.
H. M. OKWENGU
JUDGE
In the presence of:
Sitonik H/B for Gikandifor the Plaintiff
Oduor for the Defendant
Kiponda Court Clerk