[2001] KEHC 670 (KLR)
The court found that the original plaint was verified by an affidavit commissioned by the plaintiffs' own advocate, in clear violation of Section 4(1) of the Oaths and Statutory Declarations Act, rendering it incompetent. The amended plaint, filed without any verifying affidavit, was in breach of Order VII Rule 1(2)...
Source-derived case information.
- Citation
- [2001] KEHC 670 (KLR)
- Parties
- Plaintiff: John Sentero Kamukere; Plaintiff: Paul Siraonga; Plaintiff: Paul Njoroge; Plaintiff: James Loshiro; Defendant: United Insurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1127 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Amended Plaint
- Outcome
- application allowed; original and amended plaints struck out with costs to defendant
- Judges
- T Mbaluto
- Legal Topics
- Verifying Affidavit, Striking Out Pleadings, Non Compliance With Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Sentero Kamukere
Plaintiff
Paul Siraonga
Plaintiff
Paul Njoroge
Plaintiff
James Loshiro
Plaintiff
United Insurance Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Amended Plaint
Legal Issues
- 1 Whether the original plaint was properly verified in accordance with the Oaths and Statutory Declarations Act.
- 2 Whether the amended plaint, filed without a verifying affidavit, is competent under the Civil Procedure Rules.
- 3 Whether the amended plaint and original plaint should be struck out for non-compliance with procedural requirements.
Ratio Decidendi
The court found that the original plaint was verified by an affidavit commissioned by the plaintiffs' own advocate, in clear violation of Section 4(1) of the Oaths and Statutory Declarations Act, rendering it incompetent. The amended plaint, filed without any verifying affidavit, was in breach of Order VII Rule 1(2) of the Civil Procedure Rules. No justification was provided by the plaintiffs for these procedural lapses. The court, following precedent, held that both the original and amended plaints were fatally defective and must be struck out. The defendant's application to strike out the plaints was therefore allowed, with costs awarded to the defendant.
Court Disposition
application allowed; original and amended plaints struck out with costs to defendant
Orders
- Both the original plaint and the amended plaint are struck out.
- The plaintiffs shall bear the defendant's costs of this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 1127 OF 2000
JOHN SENTERO KAMUKERE ………...…………… 1ST PLAINTIFF
PAUL SIRAONGA ………………………………….. 2ND PLAINTIFF
PAUL NJOROGE …………………………………… 3RD PLAINTIFF
JAMES LOSHIRO ……………………..…………….. 4TH PLAINTIFF
VERSUS
UNITED INSURANCE CO. LTD. …………………… DEFENDANT
RULING
On 26. 6.2000 the plaintiffs filed a declaratory suit against the defendant to recover the sum of Shs.110,050/= which said sum had been awarded to them in Nairobi R.M.C.C. No. 6073 of 1999. The verifying affidavit accompanying the plaint purportedly sworn by all the plaintiffs was commissioned by Mr. Malonza who is the advocate for the plaintiffs and by whom the plaint is drawn. The commissioning of the affidavit by Mr. Malonza was clearly in breach of the proviso to Section 4(1) of the Oaths and Statutory Declarations Act and consequently the verifying affidavit was defective and incompetent.
The plaintiffs however applied for leave to amend the plaint. The application was allowed vide a consent order recorded on 26. 10. 2000 by Hon. Commissioner Ransley. The amended plaint was subsequently filed on 16. 11. 2000 without an accompanying verifying affidavit in total breach of O. VII Rule 1(2) of the Civil Procedure Rules.
By reason of the plaintiffs’ failure to comply with O. VII Rule 1(2) of the Civil Procedure Rules, the defendant has moved this court by way of a Chamber Summons application to strike out the amended plaint.
As far as I can see, the correct position in this matter is that, as aforesaid, the original plaint having been verified by an incompetent affidavit clearly offends the provisions of Section 4(1) of the Oaths and Statutory Declarations Act. In the case of James Francis Kariuki V. United Insurance Co. Ltd. (Milimani H.C.C.C. No. 1450 of 2000) the court struck out a plaint under the same circumstances. No good reason has been advanced by the plaintiffs to justify a different approach in the instant case. As for the amended plaint, no attempt was made to verify it and it is hopelessly incompetent and must also be struck out.
For the above reasons, the application is allowed and both the original plaint and the amended plaint struck out with costs. The plaintiffs will bear the defendant’s costs of this application.
Dated at Nairobi this 9th day of March, 2001.
T. MBALUTO
JUDGE