[2017] KEHC 2225 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 284 OF 2001

JANET NUNGARI MUNGAI....................................................APPELLANT

VERSUS

PREMIER BAG AND CORDAGE LTD................................RESPONDENT

JUDGMENT

By way of a plaint dated the 18th October,2000 the plaintiff/Appellant commenced Civil suit No. 1050/2000 wherein she sought general and special damages, interest at court rates and costs against the defendant/Respondent.

It was alleged that on or about the 2nd May, 1999 the plaintiff was in the course of her employment with the defendant when she was injured by a machine. She contended that the injuries were occasioned by reason of negligence and/or breach of contract of employment on the part of the defendant, its servants and/or agents. The particulars of negligence, those of injuries and special damages are set out in paragraphs 7,9 and 10 of the plaint.

The defendant filed a defence on the 27/11/2000 in which it denied the plaintiff’s claim though it admitted that the plaintiff was in its employment at the material time. The allegations of negligence, injuries and special damages were denied.

In the alternative and without prejudice, the defendant averred that if the accident occurred as alleged, but which was denied, the plaintiff was the sole author of her own misfortune and/or substantially contributed to the injuries and/or loss through her own negligence. The particulars of negligence and/or breach of duty by the plaintiff were set out in paragraph 5 of the plaint.

The defendant further contended that the suit is bad in law and sought for the dismissal of the same with costs.

When the matter came up in court on the 23rd April, 2001, the defendant raised a preliminary objection based on order vii rule 1 of the CPR which stated that the plaint shall contain an averment;

“That no other suit is pending and that there has been no other suit between the plaintiff and the defendant.

Counsel for the defendant averred that the said averment was omitted in the plaint and therefore the same was fatally defective.”

It was further contended that the verifying affidavit dated 11/10/2000 did not indicate where it was sworn thus offending provisions of Section 5 of cap 15 law of Kenya. In support of this contention, Counsel relied on the Development Bank Vs African Greenfields Limited & 2 others wherein a similar issue was raised and the court upheld the objection.

In his response, Counsel for the plaintiff submitted that any affidavit sworn before a commissioner of oath is stamped and in the case herein, it shows that it was stamped in Nairobi where it was sworn.

On the issue of the plaint having failed to state that there is no other suit pending, he submitted that it was not a good objection and in any event, the plaintiff has a right to file another suit even if the one before the court was dismissed.

While responding to the submissions by the Counsel for the plaintiff, Counsel for the defendant argued that the mode of drafting an affidavit is stated in Cap 15 and that the commissioner’s address is not good enough. He contended that order vii rule I contains mandatory provisions to be included in the plaint and that the plaintiff has not complied with it.

The learned magistrate after hearing the objection rendered a ruling on the 7th May, 2001 in which she over ruled the same for the reason that the irregularity complained of is not prejudicial to the defendant’s case hence the Appeal herein by the defendant who was aggrieved by the said ruling.

In its memorandum of Appeal dated the 6th June, 2001, the Appellant has raised five grounds of Appeal as follows; that the learned Magistrate erred when she ruled against the mandatory provisions of order vii rule l of the Civil Procedure Rules particularly with regard to the averments to be contained in the body of the plaint, that the magistrate erred when she ruled against the mandatory provisions contained in cap 15 laws of Kenya relating to affidavits, that the magistrate erred in finding that the plaintiff’s non compliance with the mandatory provisions would not prejudice the defendant’s/Appellant’s case and that the magistrate failed to properly consider the issues raised in the preliminary objection thus arriving at a wrong decision.

The Appeal proceeded by way of written submissions but the Respondent did not file her submissions despite having been notified to do so via a mention notice that was served on her advocate on the 18/7/2017.

This court has considered the grounds of Appeal and the submissions by the Appellant. At the heart of the five grounds of Appeal is non compliance with mandatory provisions of the law relating to the format of swearing of an affidavit as provided for in section 5 of the oaths and statutory Declarations Act cap 15 laws of Kenya which provides that;

“Every commissioner for oaths before whom an affidavit is made under this Act shall state in the jurat or attestation at what place and at what date the oath or affidavit is taken or made”

The second limb of the objection is based on the provisions of order vii rule l (e) which stated that a plaint should contain an averment that

“there is no suit pending and that there has been no previous proceedings in any court between the plaintiff and the defendant over the same subject matter.”

The court notes that the preliminary objection related to legal technicalities and not the substance. In the light of Article 159 (2) (d) of the constitution this court is enjoined to disregard legal technicalities and focus on substantive justice.

In the premises, I find and hold that the appeal has no merits and it is hereby dismissed.

Each party to bear its own costs of the Appeal.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent