https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9242

Chege v Muriu (Sued as a Trustee of Parklands Sports Club) & another (Petition E478 of 2024) [2026] KEHC 9242 (KLR) (Constitutional and Human Rights) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9242 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E478 of 2024 RE Aburili, J June 26, 2026 Between Peter Mungai Chege Petitioner and Dr Joseph Muriu (Sued As A Trustee Of Parklands Sports Club) 1st Respondent Anil Shah (Sued as a Trustee of Parklands Sports Club) 2nd Respondent Ruling 1.The petition dated 3rd September, 2024 is not signed, though accompanied by a verifying affidavit which is signed or commissioned but merely verifies the correctness of the petition and the authority given to counsel to institute suit, while deposing that there is no other suit pending between the parties over the same subject matter. 2.No single exhibit is annexed to the verifying affidavit. The question is whether an unsigned petition is a petition and whether it can be amended to cure any effect. 3.Rule 10 (f) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms ) Practice and Procedure rules, 2013 provides that (f) the petition shall be signed by the petitioner or the advocate of the petitioner. 4.This Rule is similar to Order 2 Rule 16 of the Civil Procedure Rules, 2010 which provides that-:“Every pleading shall be signed by an advocate or recognized agent (as defined by Order 9 Rule 2) or by the party if he sues or defends in person. 5.This Court verified from the Case Tracking System that the petition is not signed. On the effect of an unsigned petition which is a pleading by the party filing, the Court of Appeal in Vipin Mganlal Shah & another Vs Investment and Mortgages Bank Ltd & 2 others [2001] EKLR and followed by many other similar decisions held that-“... if a plaint is not signed either by the plaintiff in person or his recognized agent or his advocate, what is the use of requiring that it contains an averment by the plaintiff that there is no other suit pending and so on? If the plaint is not signed as required by Order VI Rule 14, these other requirements clearly become meaningless. Whatever may be the position in India or even in England, the position in Kenya seems to us to be that a party who files an unsigned plaint runs a very grave risk of having that plaint struck out as complying with the law”. 6.In Regina Kavenya Mutuku & 3 others Vs United Insurance Company Ltd (2002) eKLR Ringera J held that:“An unsigned pleading cannot be valid in law. That it is the signature of the appropriate person on a pleading which authenticates the same. An unauthenticated document is not a pleading of anybody. It is a nullity. Where a pleading has been amended and the same has been struck out for whatever reason the party affected has simply no valid pleadings left on record.” 7.An unsigned pleading and in this case, the petition which was filed and paid for, is unsigned, it is fundamentally defective and a nullity ab initio such that not even an amendment can cure it as an amendment can only be effected on a validly filed petition. 8.This defect is not a mere procedural technicality which is curable by an amendment. It is a substantive legal requirement that demonstrates ownership and responsibility for the content such that without a signature or thumbprint the pleading is completely unauthenticated. A document that legally does not exist cannot be amended and therefore Article 159 (2) (1) of the Constitution cannot be a shield to cure it. 9.In the vipin Maganlal (supra) case, the Court of Appeal further emphasized that the object of requiring that pleadings be signed must be clearly to make a party suing take ownership and responsibility for the contents of the pleadings or as was said in the Australian case of Great Australian Gold Mining Company case to be:“A voucher that the case is not a mere fiction.” 10.see also Cheraik Management Ltd vs NSSF Board of Trustees & another (2012) EKLR and JR 176/2017 Nairobi City county government Vs Kenya Revenue authority & attorney General [2017] e KLR where the court considered whether such defect is excusable and held that it was not. 11.In Teya Vs County Govt of Nyamira & 2 others ELC Pt e008/2022 [2023] the court held that the petitioners unsigned petition is a nullity. See also Zaky Travel and Tours Ltd & 3 others Vs Hassan Ole Naado & 5 others [ 2021] KEHC 3465 KLR where a similar holding was made. 12.On the court raising the issue, the petitioner acknowledged the mistake and opted to withdraw the petition but the respondent asked for costs which were opposed. 13.The respondent submitted that they had raised the issue of filing a verifying affidavit instead of a supporting affidavit and that they had filed responses to the petition as amended. 14.However, I do not find that the defect in the form of the affidavit is fatal to a petition in view of the fact that there is no mandatory requirement that a petition must be accompanied by an affidavit. This is in view of Rule 11 (2) of the Mutunga Rules which provides that (2) if a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit. 15.In other words a petitioner can simply file a petition and annex documents on it without an affidavit in support or choose to file an affidavit and annex documents thereto. 16.This is so, considering that a petition in itself is a complete pleading with or without a supporting affidavit and there is sufficient judicial pronouncements on this. A.N. Makau J (as he then was) stated as follows in Anthony Muli Nzioka v Attorney General [2020] KEHC 10244 (KLR):“ 29.The case relied upon by the Respondent can however be distinguished in that it was an election petition and not a Constitution Petition. Rule 11(1) of the Mutunga Rules provides thus:“The Petition filed under these rules may be supported by an affidavit.” 30.From clear reading of Rule 11(1) of the Mutunga Rules, it appears in my view that a Petition may be filed without a supporting affidavit. The word used is “may be supported by an affidavit” which to me is not mandatory to file all petitions with supporting affidavit. However there is no bar where a party wishing to rely on any document, to annex the document to the supporting affidavit or the petition where there is no supporting affidavit. It therefore follows if a party has to attach an affidavit it has to be properly drawn, signed, dated and commissioned but it appears there is no bar where a party do not wish to file an affidavit, to attach the document to Petition even without a supporting affidavit. In addition to the above Rule 10(3) of the Mutunga Rules provides:“Subject to Rules 9 and 10 the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.” 17.Delay cannot be a reason for awarding costs. In this case, the issue at hand which was material was raised by the court suo moto. 18.In the end, as the unsigned petition is not a petition but an unauthenticated document filed in court, and incapable of being cured by an amendment, both the unsigned and amended petition are hereby struck out with no orders as to costs. 19.This file is closed. DATED SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026R.E ABURILIJUDGE