[2002] KEHC 514 (KLR)
The court held that while Order 7 rule 1 (2) requires a plaint to be accompanied by a verifying affidavit, the rule does not expressly require a fresh verifying affidavit to be filed with an amended plaint. The original verifying affidavit remains part of the court record unless withdrawn or removed. The amendment...
Source-derived case information.
- Citation
- [2002] KEHC 514 (KLR)
- Parties
- Plaintiff: Eustella Francis Hamisi; Defendant: The Aga Khan Hospital, Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 94 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Amended Plaint
- Outcome
- application dismissed
- Legal Topics
- Amendment of Pleadings, Verifying Affidavit Requirements, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eustella Francis Hamisi
Plaintiff
The Aga Khan Hospital, Mombasa
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Amended Plaint
Legal Issues
- 1 Whether an amended plaint must be accompanied by a fresh verifying affidavit under Order 7 rule 1 (2).
- 2 Whether failure to file a verifying affidavit with an amended plaint is fatal to the suit.
Ratio Decidendi
The court held that while Order 7 rule 1 (2) requires a plaint to be accompanied by a verifying affidavit, the rule does not expressly require a fresh verifying affidavit to be filed with an amended plaint. The original verifying affidavit remains part of the court record unless withdrawn or removed. The amendment in this case did not affect the substance of the claim, and the omission of a new verifying affidavit did not cause prejudice or injustice. The court exercised its discretion under Order 7 rule 1 (3) and declined to strike out the amended plaint, finding that any omission could be corrected without injustice.
Court Disposition
application dismissed
Orders
- The application to strike out the amended plaint is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 94 OF 2002
EUSTELLA FRANCIS HAMISI ……………………………… PLAINTIFF
VERSUS
THE AGA KHAN HOSPITAL, MOMBASA ……………… DEFENDANT
R U L I N G
The application by chamber summons is brought under the provisions of Order 7 rule 1 (3) and seeks an order striking out the amended plaint dated 25th April 2002 for reasons that it is not accompanied by a Verifying Affidavit as required under sub-rule 2 of rule 1 sub-rule (2) provides:
“The plaint shall be ac companied by an Affidavit sworn by the plaintiff
verifying the correctness of the averments contained in the plaint.”
While sub-rule (3) provides:
“The court may of its own motion or on the application of the defendant
order to be struck out any plain t which does not comply with sub -rule (2) of this rule.”
Underlining in both cases is mine.
The application is supported by an Affidavit sworn by counsel for the applicant Mr. Stephen Macharia Kimani. He argued that the failure to file together with the amended plaint a Verifying Affidavit offended the provisions of order 7 rule 1 (2). I have already reproduced the provisions therein which no doubt are mandatory.
Mr. Otieno for the Respondent submitted that the provisions of order 7 rule 1 do not extend to an amendment and he referred to Mulla’s Commentary on the Civil Procedure volume 1 page 592.
In arriving at a conclusion in this case, I consider it necessary to first examine what the effects of an amendment are and whether the same extends to the Affidavit already filed. The commentary on the effects of amendment in the supreme court practice 1997 Edition Vol. 1 at page 357 has been referred to in many other decisions touching an amendments. Paragraph 20/5:
“---------------- similarly in the pl eadings: “once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried”
Pleadings generally include the Affidavits filed but it has been settled that Affidavits are never subject to amendments.Once an Affidavit has been filed it remains part of the record unless and until the same is either withdrawn or in any other manner removed so as to no longer form part of the record. In the current case, there is no dispute that the amended plaint effectively rendered the originally filed one useless as far as the claim is concerned. However the Affidavit has remained as part of the court record and in my opinion had order 7 rule (1) envisaged a situation where the amendment would affect the original Verifying Affidavit. It would have been so stated. In any case, if this is not so, the omission is one that can be corrected without necessarily causing any prejudice or injustice to the party in this case.The amendment effected was as regards the defendant but the main substance of the claim remains unchanged.
Orders 7 rule 1 (3) gives the court the discretion in such a situation and if I had found that the amended plaint cannot remain in the absence of an independent Verifying Affidavit, I would not have ordered the striking out of the same.
For the reasons, the application is dismissed with costs.
Dated this 26th day of September 2002.
P.M. TUTUI
COMMISSIONER OF ASSIZE