[2024] KEHC 511 (KLR)
The court held that the failure to sign the plaint and witness statement is a fatal defect that cannot be cured by Article 159 of the Constitution. The signature authenticates the pleadings and confirms ownership, and without it, the court cannot act on or verify the documents. The verifying affidavit alone does not...
Source-derived case information.
- Citation
- [2024] KEHC 511 (KLR)
- Parties
- Plaintiff: Robin Hardie; Defendant: Alex Odundo t/a Olex Techno Enterprises
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Commercial Case E009 of 2023
- Procedural Posture
- Commercial Case / Ruling on Validity of Pleadings
- Outcome
- Plaint and witness statement struck out as unsigned and undated; liberty to file fresh pleadings; no order as to costs; file closed.
- Judges
- RE Aburili
- Legal Topics
- Pleadings Signature Requirement, Striking Out Pleadings, Authentication of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robin Hardie
Plaintiff
Alex Odundo t/a Olex Techno Enterprises
Defendant
Procedural Posture
Commercial Case / Ruling on Validity of Pleadings
Legal Issues
- 1 Whether failure to sign a plaint and witness statement is fatal to the plaintiff's claim.
- 2 Whether unsigned pleadings can be cured by Article 159 of the Constitution.
- 3 Whether the court can authenticate and act on unsigned pleadings.
Ratio Decidendi
The court held that the failure to sign the plaint and witness statement is a fatal defect that cannot be cured by Article 159 of the Constitution. The signature authenticates the pleadings and confirms ownership, and without it, the court cannot act on or verify the documents. The verifying affidavit alone does not cure the defect, as there is nothing to verify if the underlying pleadings are unsigned. Consequently, the unsigned plaint and witness statement must be struck out, and the plaintiff is at liberty to file fresh, properly authenticated pleadings.
Court Disposition
Plaint and witness statement struck out as unsigned and undated; liberty to file fresh pleadings; no order as to costs; file closed.
Orders
- The undated and unsigned plaint and witness statement filed on 21st September 2023 are struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
Hardie v Odundo t/a Olex Techno Enterprises (Commercial Case E009 of 2023) [2024] KEHC 511 (KLR) (26 January 2024) (Ruling)
Neutral citation: [2024] KEHC 511 (KLR)
Republic of Kenya
In the High Court at Kisumu
Commercial Case E009 of 2023
RE Aburili, J
January 26, 2024
Between
Robin Hardie
Plaintiff
and
Alex Odundo t/a Olex Techno Enterprises
Defendant
Ruling
1. I have perused the pleadings in this case as filed on 21st September 2023. I observe that only the verifying affidavit was signed by the Plaintiff. The Plaint, witness statement and list of documents were never signed.
2. More importantly, is that the plaint and witness statement are unsigned and undated. The court can ignore the dating aspect and consider the pleadings as having been dated on the date of filing in court.
3. However, failure to sign a plaint and statement of a witness is fatal to the Plaintiff’s claim as there is no way the court can authenticate the pleading.
4. Such defect is fatal and is not a procedural technicality which is curable by application of Article 159 of the Constitution.
5. There was therefore nothing that the Plaintiff was verifying by his affidavit sworn on 12th September 2023 at Edinburg, Scotland before Lewis Shand, a notary public.
6. Where a pleading is not signed by either a party or their advocate, or recognized agent, it is amenable to be struck out. This is because signing of pleadings authenticates the pleadings and such signing is a voucher that a case is not a mere fiction.
7. Ownership of pleadings is very crucial in litigation. See Cheraik Management Ltd vs NSSF Board of Trustees & Another (2012) eKLR and JR 176 of 2017 Nairobi City County Government vs KRA & Another (2017) eKLR.
8. For the above reasons, I hereby strike out the undated and unsigned plaint and witness statement filed in this court on 21st September 2023 with no orders as to costs.
9. The party is at liberty to file fresh pleadings which are duly authenticated.
10. I make no orders as to costs.
11. The Registry to notify the Plaintiff’s advocate forthwith.
12. This file is accordingly closed.
13. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 26TH DAY OF JANUARY, 2024R. E. ABURILIJUDGE