https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12266

Momanyi v Mengo (Civil Case E193 of 2025) [2026] KEHC 12266 (KLR) (Civ) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12266 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E193 of 2025 JN Mulwa, J July 30, 2026 Between Clement Osiri Momanyi Plaintiff and Jared Kwastimah Mengo Defendant Ruling 1.Before the court for determination is the Defendant’s motion dated 5/09/2025 seeking as against the Plaintiff Orders:-1)Spent2)That the Plaint and application dated 21/07/2025 filed herein together with all accompanying documents be struck out for being fatally defective, incompetent and an abuse of court process.3)That costs of the application and the entire suit be borne by the Plaintiff. 2.The motion is predicated on provisions of Section 1A, 1B and 3A of the Civil Procedure Act (CPA) and Orders 2 Rule 15, Order 4 Rules, Order 19 Rules 3 & 7, and order 51 Rule 1 of the Civil Procedure Rules (CPR) and supported by an affidavit sworn by himself on an even date, and grounds found on its face. 3.The Defendant’s case as garnered from his affidavit material as provided is that the Plaintiff at all material times was a resident of the United States of America (USA), whereas in his Plaint dated 21/07/2025 and verifying Affidavit thereto sworn on an even date, and his witness statement, as well as in the supporting affidavit to motion the motion dated 21/07/2025, he falsely misrepresented himself as being a resident and working in Kenya while in reality his domicile is in the USA. 4.The Defendant further posits that under Order 4 Rule 1 (2) of the CPR every Plaint and verifying affidavit must be sworn by the Plaintiff verifying the correctness of the averments in the Plaint, whereas Section 88 of the Evidence Act and the Oaths and statutory Declarations Act, provides that all affidavits sworn outside Kenya must be notarized before and by a notary public, and authenticated for use in Kenya. 5.That, the Defendant avers, based on the above misrepresentations and falsehoods by the Plaintiff, renders the entire suit and the motion dated 15/09/2025 a nullity ab initio and incapable of being sustained, the subject matter of the suit being the Plaintiff’s residency. 6.The Defendant has annexed to his affidavit in support of the motion-assorted documentations, supporting affidavits, the Plaint, verifying affidavit, witness statement, vedio clips to support the residency of the Plaintiff as the USA; and marked “JKM – 1, 2, 3, 4, 5.” 7.Additionally, the Defendant depones that the Plaintiff is his father-in-law, husband to his late mother-in-law, and therefore well versed with all material facts in this suit, and in support of his motion to strike out the suit, stating that continued reliance by the court of inadmissible, defective and false averments constitutes abuse of court process and amounts to misleading the court. 8.The Defendant lastly relies on provisions of Order 4 Rule 1(2) CPR, Section 88 of the Evidence Act, the Oaths and Statutory Declarations Act to buttress his case for striking off the suit. 9.The motion is opposed.The Plaintiff Clement Osiri Momanyi swore his replying affidavit on 26/09/2025 at California, USA, and notarized before Jocelyn Juaban Jimeruz – at County of Alameda on 26/09/2025. The key averments in his affidavit is that the Defendant’s motion under review is misconceived, defective, incurably incompetent and ought to be struck out for lack of foundation and upon grounds that the Defendant has not filed a memorandum of appearance to the suit thus his participation is therefore irregular. 10.Additionally, the Plaintiff avers that he had duly sworn, notarized and transmitted the proper verifying affidavit to his counsel, and therefore the error which he admits arose solely from his counsel’s inadvertence and mistake by attaching the non-notarized version, and attaching the correct versions and marked “Vo-1 and SO -2” to the verifying affidavit and supporting affidavit. 11.The Plaintiff goes on to state that striking out the suit on account of technical objections would prejudice him, whereas no prejudice whatsoever would be suffered by the Defendant, adding that the issue of his residency is a contrived distraction, being a Kenyan citizen who signed the verifying affidavit and the supporting affidavit. 12.The Plaintiff relies on decisions to support his averments, to wit, Lucy Bosire v. Kechancha (no citation stated) and Edney Adaka Ismael v. Equity bank Ltd (2014) eKLR to urge the court to find that the motion is a gross abuse of the court, and dismiss it with costs, and to order the suit to proceed to full hearing on merit. 13.In a further affidavit sworn on 13/10/2025 by the Defendant as a rejoinder to the Plaintiff’s response, the Defendant annexed a Memorandum of Appearance dated 27/07/2025 filed by his counsel, that in his replying affidavit dated 26/09/2025 he continues to state that he works and resides in California- USA, that the affidavits in issue were irregularly and falsely commissioned in Kenya while made at the USA. 14.In further riposte, the Defendant posits that the alleged notarized versions of his affidavits (“VD-1 and SO2” cannot retrospectively validate pleadings that are void ab initio, as they are integral pleadings forming part of the original record, in any event no leave of court has been obtained in that regard, adding that the Plaintiff’s attributes of irregular filings to inadvertence of counsel cannot be taken as truth as the said counsel has not verified the inadvertency by an affidavit, or otherwise, and finally that the opposing affidavit by the Plaintiff is founded on falsehoods, is defective and the court ought to disregard in its entirely with costs. Defendant’s Submissions 15.In the Defendant’s submissions dated 5/01/2026, six issues are flagged for determination thus:-1.Whether the verifying affidavit to the Plaint and the replying affidavit to the instant motion both sworn by the Plaintiff are legally sworn and capable of sustaining the suit.2.Whether the affidavits sworn outside Kenya but falsely commissioned as having been sworn in Kenya, Nairobi are nullities ab initio.3.Whether subsequent filing of notarized affidavits can retrospectively validate defective original pleadings.4.Whether Article 159(2) (d) of the Constitution can cure deliberate non-compliance with mandatory provisions of statute.5.Whether the suit meets the threshold for striking out under Order 2 Rule 15 of the Civil Procedure Rules.6.Whether the Applicant/Defendant will suffer any prejudice if the suit is allowed to subsist. 16.On the impugned affidavits purportedly and falsely sworn and commissioned in Kenya while the deponent, the Plaintiff, was residing at the USA are capable of sustaining the suit and or whether they are nullities ab initio; it is the Defendant’s submissions that such affidavits by a dint of Order 4 Rule 1 (2) CPR being mandatory provisions cannot sustain a suit as they evince the foundation of the suit and the motion. 17.The cases of Aritho Laweta v. M’ikunyua M’ikandi & Another [2007] KEHC 253 (KLR); Court of Appeal in Research International east Africa Ltd v.Julius Arisi & 213 Others [2007] eKLR for the holding that verifying affidavits have a special purpose, that they are not cosmetic attachments but integral pleadings whose absence or invalidity goes to the competence of the suit, adding that the latter version of the said affidavits, the Plaintiff was indeed resident in the USA. 18.As to whether affidavits falsely commissioned are nullities ab initio, the Defendant submits that upon his admissions that he (Plaintiff) was in the USA when he swore the impugned affidavits, the Jurat was therefore not complied with in terms of Section 5 of the Oaths and Statutory Declarations Act. 19.The decision in JAK V SWW [2025] KEHC 5232 (KLR) at par 41-51; was called to aid whereof the court faced with very similar circumstances, to wit, failure to comply with the law as regards the jurat held that such affidavits being defective and a nullity including all the documents and or annexures thereto cannot be remedied under Article 159(2) (b) of the Constitution. 20.Other cited decisions in support of the Defendant’s submissions are the Supreme Court of Nigeria in Dr. Arthur Nmwankwo & Another v. Alhaji Umaru Yaradua & Ors (2010) LPELR 2109 (sc); Speaker of National Assembly v. Karume [1992] KECA 42 [KLR]; Geoffrey Githinji mwangi & 2 Others v. Jubilee Party & 11 Others [2018] KEHC 6033 [KLR] among others for the same holdings. 21.On whether subsequent notarization of the affidavits can retrospectively cure a nullity, the Defendant submits that introducing notarized versions of the affidavits through a Replying Affidavit is legally untenable, citing Lord Denning’s decision in Macfoy v. United Africa Co. Ltd [1961] 3 ALL ER 1169 [PC] wherein he held that“if an act is void, then it is in law a nullity. It is not only bad, but incurably bad…. It is automatically null and void, and every proceedings which is founded on it is also bad, and incurably bad.” 22.On alleged Plaintiff’s counsel’s inadvertence, the Defendant submits that such is no defence to statutory illegality, there being no counsel’s affidavit to explain the circumstances leading to the inadvertence, if any, that Article 159 (2) (d) of the constitution was never intended to uproot established procedural safeguards, citing Raila Odinga & Others v. IEBC & Others [2013] eKLR and reaffirmed in Mumo Matemu v. Trusted Society Of Human Rights Alliance [2014] eKLR. 23.On the threshold for striking out a suit under Order 15 and 4 of the CPR, it is submitted that the court has power to strike out any defective pleading that is vexation, is scandalous and an abuse of court process citing D. T Dobie & Co. (Kenya) Ltd v. Muchina [1982] KLR. 24.Lastly, on costs, the Defendant cites Section 27 CPA urging that costs ought to follow the events, upon striking off the motion as well as the suit. Plaintiff’s Submissions 25.The Plaintiff in his submissions by counsel started by stating that the Defendant’s motion is an attempt at manipulation of procedural dictates by attacking minor technicalities on swearing of affidavits out of Kenyan jurisdiction rather than addressing serious issues in the suit . 26.The Plaintiff submits that the minor defects are curable, on the other hand admitting that the impugned affidavits were indeed sworn in the USA, were not notarized at the USA but at the same time arguing that should the motion be allowed, it would constitute grave miscarriage and abuse of court process. 27.On substantive issue on whether the verifying affidavit to the Plaint, and whether the plaintiff has provided conclusive and admissible evidence to establish that the Plaintiff could not have sworn the affidavits in Kenya on the dates alleged, it is submitted that no direct evidence was evinced with either flight records, immigration stamps or credible documentation placing him in USA on 21/07/2025, thereby adding that the Defendant has failed to discharge the evidential burden that the Plaintiff could not have been in Kenya at the material time. 28.On whether the suit should be struck out by dint of the procedural defects, it is submitted that justice requires that the dispute be determined on its substantive merits, citing decisions in DT Dobie & Co. (Kenya) Ltd v. Josep Muchina & Another [1980] eKLR, wherein it was held that no suit ought to be summarily dismissed unless it appears so hopeless that it would be impossible to sustain it. 29.As to whether the motion constitutes an abuse of court process, it is submitted that the Defendant seeks refuge in a hyper-technical point to avoid answering for the substantive harm allegedly caused to the Plaintiff, that the court ought to sustain the suit rather than dismiss it as held in Muchanga Investments Ltd v. Safari Unlimited (Africa) Ltd & 2 Others [2009] eKLR. 30.The court has been urged to dismiss the motion with costs, and allow the suit to proceed to hearing on its merit. Analysis and Determination 31.The impugned affidavits, the verifying affidavit to the Plaint, the Replying Affidavit to the subject motion dated 5/09/2025 are subject of the Defendant’s motion. I have considered the parties pleadings, affidavit material and submissions as filed.Rendition of issues for determination concern the following:-a.Whether the Plaintiff’s verifying affidavit to the Plaint dated 21/07/2025 sworn on an even date, and the replying affidavit to the instant motion comply with provisions of Order 4 and 19 of the Civil Procedure Rules, 2010.b.Whether the Defendant had locus standi to bring the motion under review dated 5/09/5025.c.Whether this suit and the motion should be struck out with costs. Whether the Plaintiff’s verifying affidavit to the Plaint and replying affidavit to the motion under review comply with Order 4 and 19 of the CPR. 32.Order 4 Rule 1(2) of the CPR enumerates the documents that must accompany a Plaint, to wit, a verifying affidavit sworn by the Plaintiff to verify the correctness of averments stated in the Plaint. At par. 1 (b) the name description and place of residence of the Plaintiff and address for service must be verified as at date of the averments. 33.A cursory perusal of the Plaint at par. 2, the Plaintiff stated to have been residing and working for gain in Nairobi County. This status was verified by the Plaintiff by his verifying affidavit, at par. 4, swearing that the facts deponed to are true and of his personal knowledge. 34.The Defendant in his motion under review disagrees with Plaintiff’s averments particularly that at the Plaintiff at the material time he was working and residing at Nairobi County, to wit, he was residing and working for gain at the USA. 35.Without going back and repetition of the parties affidavits in support of the motion, and in opposition, it has become clear and evident, and without an iota of doubt, that the Plaintiff at the time and date of the institution of this suit, to wit, 21/7/2025, he was residing and working at the USA; that he swore the verifying affidavit and replying affidavit to the motion from the USA and send them to Nairobi - Kenya, to his Counsel with instructions to have them commissioned here in Kenya, and filed. 36.These are the undisputed “facts on the ground’’ as i have garnered from Plaintiff’s replying affidavit he swore on 26/09/2025 and notarized at California, USA. 37.The Plaintiff at par. 9 thereof tactfully admitted the Defendant’s complaints when he posited that, “the very impugned verifying affidavit and supporting affidavit were not occasioned by his negligence or omission, that he notarized and transmitted the “proper verifying affidavit and supporting affidavit” but by error or mistake his counsel attached the unnotarised version, to wit, the now impugned affidavits filed in court. 38.The above clearly confirms that the Plaintiff, at the date of filing the Plaint dated 21/07/2025 he was not residing at Nairobi- Kenya, that he was a resident of California, USA; that clearly he falsified his place of residence contrary to legal dictates under Rule 1 (b) of Order 4 CPR. 39.The court is reminded that the above order is couched in mandatory terms, as the correctness of what a party brings to court is key, and an essential evidentiary foundation for a suit or application. 40.The court in Aritho Igweta v. M’ikunyua M’ikandi & Another (supra) observed and stated thus;-“The necessity of a verifying affidavit according to the Rule is to ensure without fail, (hence the word “shall”) that the plaintiff by affidavit “verifies” the correctness of the averments contained in the plaint; that the word “verify” has been defined in Collins Dictionary 1999 edition to mean “to confirm” or to prove to be true” 41.The Court of Appeal in Research International East Africa Ltd v. Julius Arisi & 213 Others [2007] eKLR held that a verifying affidavit is not a cosmetic attachment, but an integral pleading whose absence or invalidity goes to the competence of the suit. 42.Order 4 Rule 6 CPR grants the court broad powers over the initiation of suits, stating thus:“(6)the court may on its own motion or on application by the plaintiff or the defendant order to be struck out any Plaint or counterclaim which does not comply with sub-rule (2) (3) (4) and (5) of this rule”. 43.Additionally, commissioning of affidavits is underpinned by Section 5 of the Oaths and Statutory Declaration Act. It states:-“S.5 Every Commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the Jurat or attestation at what place and on what date the oath or affidavit is taken or made”. 44.Here, the impugned verifying affidavit to the Plaint is shown to have been attested or commissioned, by and before a Commissioner of Oaths on 21/07/2025 namely, Maurice Muli Nzavi, a commissioner for oaths, as his Stamp shows, at Nairobi. What comes to mind quickly here, is, a deliberate lie and falsehood by the Advocate, and obviously that the deponent, the Plaintiff, was not present before him at the time of attestation of the affidavit. If this was not so, I strongly believe that he would have sworn and filed an affidavit to deny the falsehoods, to clarify the facts. Going by the admissions by the Plaintiff as aforestated, the Plaintiff who was resident in the USA at the time (and probably now), could not have been physically in Nairobi- Kenya to appear before the said Commissioner for oaths.I will not say more in respect to the commissioner for oaths here, as he clearly knows the consequences of perjury, as is the case here. 45.It is trite law as garnered from Black’s law Dictionary that:-An oath is a solemn declaration … the legal effect of an oath is to subject the person to penalties for perform if the testimony is false” 46.The law is, that where an affidavit has been sworn in a foreign country, (except commonwealth countries) it ought to be notarized and accompanied by a certificate of notarization showing that it was sworn before a notary. The court in the case of Raccolta Malner & Greigner v. Royal Trading Company Limited [2014] eKLR, stated in depth consequences to a plaintiff who fails to comply with Section 5 of the Oaths and Statutory Declarations Act, Chapter 15 laws of Kenya as at to Jurat requirements, including any documentation attached to the affidavits, failure to comply would render the suit or application a nullity and ripe for being struck out. This fundamental defect goes to the root of the suit and or application. 47.Additionally, in Preeraj General Trading & Contracting Company Ltd, Kenya & Another v. Mumias Sugar Company Limited [2016] eKLR, the court while discussing similar issues, held that Article 159 of the Constitution cannot cure the said defects, that the documents thereto are inadmissible in evidence in Kenyan courts. 48.The Plaintiff upon realization of his mistake (but said to be his counsel mistake) sent to his counsel the correct notarized affidavits, as he posits for filing. Assuming that the said properly notarized affidavits were sent to his counsel here in Kenya, the question arises whether the subsequent notarized affidavits can retrospectively cure the defects in the suit? 49.In the first instance, further affidavits to any application must be made by leave of court. No such leave was ever sought by the Plaintiff by his counsel, even upon realization that the affidavits were defective. They cannot be retrospectively introduced in the suit. In the matter of the suit, an unverified suit in my considered view is a nullity. The same would be for unverified replying affidavits to an application by dint of Order 51 Rule 4 CPR. 50.It is trite that a null and void pleading cannot be amended, substituted or retrospectively validated, as nothing can arise from a void pleading, as held in Regina Kavenya Mutuku & 3 others v. United Insurance CO. Ltd [2002] 1114 (KLR). The Plaintiff cited Odunga J. in Lucy Bosire v. Kehancha Division Land Dispute Tribunal & 2 Others, yet the judge rendered that:-“…to treat a party's genuine cause as though it were hostage to counsel's error would be to exalt form over substance and to sacrifice justice at the altar of technicality….” 51.Further, the Supreme Court in the Raila Odinga & 2 Others vs IEBC & Others [2013] eKLR emphatically held that Article 159 (2) (d) of the constitution was never intended to uproot established procedural safeguards or to whitewash non-compliance with mandatory requirements. 52.Mumo Matemu V. Trustees Society of Human Rights Alliance (supra) reiterated the above decisions and added that misrepresentation as to the place of swearing of an affidavit is not a technical lapse. It is a substantive falsehood that undermines the integrity of the court process. 53.On the matter of the Defendant’s lack of locus standi, to file the motion under review, I have deliberately perused the CTS. What I garner therefrom is that the instant motion dated 15/09/2025 was filed on 1/10/2025 as verified by the payment receipt and invoice dated 1/10/2025, yet the request for mapping for purposes of filing the Memorandum of Appearance by counsel was made on 31/07/2025. The delay of two months has not been explained. Clearly, it is not disputed that the Memorandum of Appearance by the Defendants counsel was filed after the filing of the application dated 5/09/2025, by approximately 25 days. 54.Despite the above, the court under Order 4 Rule 6 CPR is empowered, of its motion or on application the plaintiff or the defendant order to be struck out any Plaint or Counterclaim which does not comply with Sub-Rule (2), (3), (4) and (5) of this rule. 55.I have in this ruling elsewhere above found and held that the Plaintiff failed to comply with provisions of Order 4 Rule 6 CPR in its entirety, thus rendering the suit ripe for striking out. In this regard, I have exercised my powers granted by the above legal provision to proceed to strike out the suit. 56.Before I pen off, I want to say that even if the Defendant had not brought out the defects in the suit by his motion, being lack of locus standi, by his Advocates for failure to file a Memorandum of Appearance before or at filing the motion, the court would still have discovered at some point in the progression of the suit, the Plaintiff’s mischief. 57.For the foregoing, this court is persuaded that the plaintiff’s suit cannot stand, it must be struck out. It is so ordered. 58.On costs, Section 27 of the Civil Procedure Act also empowers the court to determine by whom and to what extent such costs are to be paid. The proviso thereto allows the court to depart from the principle that costs shall follow the event, upon reasons, otherwise order.I have noted that the dispute here concerns members of the same family. Accordingly I shall and hereby do, direct that each party does bear own costs of the motion and the suit.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JULY 2026.………………………JANET MULWA.JUDGE