[2002] KEHC 1168 (KLR)

[2002] KEHC 1168 (KLR)

The court held that while the substantive contents of an affidavit, once sworn, should not be amended, technical amendments to formal parts such as the title are permissible if they do not affect the substance of the oath. In this case, the applicant's amendment was limited to the title to include new parties as ordered by the court, and did not alter the substance of the affidavit. There is no legal authority barring such technical amendments. Furthermore, the court found that there is no express requirement in the Civil Procedure Rules that an amended plaint must be accompanied by a new verifying affidavit; the original verifying affidavit suffices. Even if the affidavit were to be...

Citation
[2002] KEHC 1168 (KLR)
Parties
Applicant: Swaleh Gheithan Saanun; Defendant: Commissioner of Lands; Respondent: Attorney-General; Defendant: 2nd Defendant
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
31 October 2002
Case Number
Civil Case 227 of 2002
Procedural Posture
Civil Case / Ruling on Preliminary Objection Regarding Amended Affidavit
Outcome
preliminary objection dismissed
Legal Topics
Affidavit Amendment, Verifying Affidavit, Preliminary Objection, Amended Plaint, Technical Amendments
Source Language
English
Civil Procedure Affidavit Amendment Verifying Affidavit Preliminary Objection Amended Plaint Technical Amendments

Case Brief

Summary, issues, holding and outcome

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Parties

Swaleh Gheithan Saanun

Applicant

Commissioner of Lands

Defendant

Attorney-General

Respondent

2nd Defendant

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection Regarding Amended Affidavit

Legal Issues

  1. 1 Whether an affidavit can be amended under Kenyan law.
  2. 2 Whether the applicant's action amounted to an amendment of the affidavit.
  3. 3 Whether striking out a verifying affidavit necessitates striking out the amended plaint for being unverified.

Ratio Decidendi

The court held that while the substantive contents of an affidavit, once sworn, should not be amended, technical amendments to formal parts such as the title are permissible if they do not affect the substance of the oath. In this case, the applicant's amendment was limited to the title to include new parties as ordered by the court, and did not alter the substance of the affidavit. There is no legal authority barring such technical amendments. Furthermore, the court found that there is no express requirement in the Civil Procedure Rules that an amended plaint must be accompanied by a new verifying affidavit; the original verifying affidavit suffices. Even if the affidavit were to be...

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is dismissed with costs to the applicant, to be agreed upon or assessed without waiting for the suit to be heard and finally decided.