[2004] KEHC 1190 (KLR)
The court found that the discrepancy in the plaintiff's middle name in the verifying affidavit was a typographical error and did not go to the substance of the suit or prejudice the defendants. The error was deemed curable. Exercising its discretion under Order VII Rule 1(3), the court declined to strike out the...
Source-derived case information.
- Citation
- [2004] KEHC 1190 (KLR)
- Parties
- Plaintiff: Eustace Mwaniki Nginga; Defendant: Philip Koskei Biego; Defendant: David K. A. Koech; Defendant: Raymond Kipkorir Rono; Defendant: Alexander Kipsiele Ruto; Defendant: Emmy Chipngetich; Defendant: Eunice Chelagat Marindany; Defendant: Rose Chemtai Korir; Defendant: John Marindany Chepkwony; Defendant: William Kipngetich Cheruiyot; Defendant: Kiprotich Yegon
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 47 of 2003
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Verifying Affidavit
- Outcome
- Plaintiff's plaint not struck out; verifying affidavit struck out with leave to file a fresh one within 10 days.
- Legal Topics
- Verifying Affidavit, Pleadings Defects, Court Discretion, Typographical Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eustace Mwaniki Nginga
Plaintiff
Philip Koskei Biego
Defendant
David K. A. Koech
Defendant
Raymond Kipkorir Rono
Defendant
Alexander Kipsiele Ruto
Defendant
Emmy Chipngetich
Defendant
Eunice Chelagat Marindany
Defendant
Rose Chemtai Korir
Defendant
John Marindany Chepkwony
Defendant
William Kipngetich Cheruiyot
Defendant
Kiprotich Yegon
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Verifying Affidavit
Legal Issues
- 1 Whether a typographical error in the plaintiff's name in the verifying affidavit renders the affidavit defective and warrants striking out the plaint.
- 2 Whether the court has discretion to allow the filing of a fresh verifying affidavit in case of such a defect.
Ratio Decidendi
The court found that the discrepancy in the plaintiff's middle name in the verifying affidavit was a typographical error and did not go to the substance of the suit or prejudice the defendants. The error was deemed curable. Exercising its discretion under Order VII Rule 1(3), the court declined to strike out the plaint but ordered the defective verifying affidavit struck out, granting the plaintiff leave to file and serve a fresh, compliant verifying affidavit within 10 days. The decision balanced the need for procedural compliance with the avoidance of undue hardship resulting from minor, non-prejudicial errors.
Court Disposition
Plaintiff's plaint not struck out; verifying affidavit struck out with leave to file a fresh one within 10 days.
Orders
- The verifying affidavit to the plaint is struck out.
- The plaintiff is granted leave to file and serve a fresh compliant verifying affidavit within 10 days from the date hereof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAKURU
CIVIL SUIT 47 OF 2003
EUSTACE MWANIKI NGINGA …………..………..PLAINTIFF
VERSUS
PHILIP KOSKEI BIEGO…………….…….…..1ST DEFENDANT
DAVID K. A. KOECH…………………..……...2ND DEFENDANT
RAYMOND KIPKORIR RONO……………....3RD DEFENDANT
ALEXANDER KIPSIELE RUTO…………..…4TH DEFENDANT
EMMY CHIPNGETICH…………………….…5TH DEFENDANT
EUNICE CHELAGAT MARINDANY………..6TH DEFENDANT
ROSE CHEMTAI KORIR……………………..7TH DEFENDANT
JOHN MARINDANY CHEPKWONY………..8TH DEFENDANT
WILLIAM KIPNGETICH CHERUIYOT…....9TH DEFENDANT
KIPROTICH YEGON………..……………….10TH DEFENDANT
RULING
The Plaintiff’s application dated 19/11/2003 was listed down for hearing on 1/10/04. However, before it was heard, the defence counsel raised a preliminary objection. He stated that whereas the Plaintiff was named as Eustance Mwaniki Nginga as per the plaint, the verifying affidavit to the plaint was by Eustance Mwangi Nginga and therefore the affidavit was sworn by a stranger to the suit and did not comply with the requirements of Order VII Rule 1(2).
Mr. Kahiga for the Plaintiff submitted that the above was a pure typographical error and the same was curable. He urged the court to exercise its discretion and allow the Plaintiff to file another affidavit which was in accordance with the law, saying that striking out of pleadings was a draconian measure which ought to be used sparingly. In Civil Suit No. 142 of 2004 PYRETHRUM PROCESSING CO. LTD VS KITCH AGRICULTURAL CO. LTD I held that the permissive wording of Order VII Rule 1(3) grants the court some discretion and it is not enjoined to strike out each and every plaint whose verifying affidavit is found to be defective. The court can consider the nature of the defect and see whether it goes to the jurisdiction of the court or whether the defect prejudices the adverse party.
I agree with Mr. Kahiga that the Plaintiff’s middle name was mistyped as Mwangi instead of Mwaniki and that the error is curabe. I decline to strike out the plaint but order the verifying affidavit be struck out and a fresh compliant verifying affidavit be filed and served upon the Defendant within the next 10 days from the date hereof.
DATED at Nakuru this 13th day of October, 2004.
DANIEL MUSINGA
AG. JUDGE
13/10/2004