[2001] KEHC 750 (KLR)
The court held that while the amended plaint was not accompanied by a verifying affidavit, the original plaint had one and the parties remained unchanged. The omission was not considered fatal, especially since a supplementary affidavit had been filed and could be admitted at the court's discretion. The preliminary...
Source-derived case information.
- Citation
- [2001] KEHC 750 (KLR)
- Parties
- Plaintiff: Hon. Paul Githiomi Mwangi; Defendant: United Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 22 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Preliminary Objection, Verifying Affidavit, Amended Plaint, Supplementary Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Paul Githiomi Mwangi
Plaintiff
United Insurance Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to accompany an amended plaint with a verifying affidavit is fatal to the suit.
- 2 Whether the court should admit a supplementary affidavit filed after the amended plaint.
Ratio Decidendi
The court held that while the amended plaint was not accompanied by a verifying affidavit, the original plaint had one and the parties remained unchanged. The omission was not considered fatal, especially since a supplementary affidavit had been filed and could be admitted at the court's discretion. The preliminary objection was therefore overruled, and the court directed that any other grounds of objection be argued at the hearing of the main application.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection to the amended plaint for lack of a verifying affidavit is overruled.
- Other grounds of objection to be argued at the hearing of the main application.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO.22 OF 2001
HON. PAUL GITHIOMI MWANGI ……………………………….PLAINTIFF VERSUS UNITED INSURANCE COMPANY LIMITED…………DEFENDANT
RULING
Mr. Gunjiri, the Learned Counsel for the Respondent raises a Preliminary Objection to the amended plaint and the amended Notice of Motion dated 19th January, 2001 on the grounds inter alia that the amended plaint was not accompanied by a verifying affidavit and therefore it should be struck out.
In reply Mr. Gitonga the Learned Counsel for the applicant while accepting that while amended plaint was not accompanied by a verifying affidavit the original plaint was accompanied by a verifying affidavit and that in any case there is now filed on 29. 1.2001 a supplementary affidavit which the applicant was asking the court to admit.
Mr. Gunjiri is right when he argues that the amended plaint should have been accompanied by a verifying affidavit. The procedure to file a verifying affidavit to the Plaint was so as to cure the mischief of suit being filed without instruction from the would be plaintiff. The plaint, which was amended, had a verifying affidavit and the amended plaint does not change the parties.
I do not regard the failure to file a verifying affidavit at the time of filing the amended affidavit as fatal. Besides there is the supplementary affidavit which could be admitted in case the court exercises its discretion in favour of admission.
This objection is overruled. As to the other grounds which Mr. Gunjiri intends to raise I direct that they will be argued at the hearing of the main application.
Delivered and dated this 7th day of February, 2001
KASANGA MULWA JUDGE