[2008] KEHC 3117 (KLR)
The court found that although Inchcape Shipping Services Ltd was admitted as an agent of the Plaintiffs, there was no evidence that Mr. Nyangala, who swore the verifying affidavit, was an authorized agent of either Plaintiff. Being merely an employee of the agent was insufficient to establish the necessary nexus....
Source-derived case information.
- Citation
- [2008] KEHC 3117 (KLR)
- Parties
- Plaintiff: K Orica (U) Limited; Plaintiff: Mitsui O.S.K. Lines Limited; Defendant: Kenya Ports Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 200 of 2005
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Strike Out Verifying Affidavit and Plaint
- Outcome
- Application partially allowed; verifying affidavit struck out; Plaintiffs granted 30 days to file proper verifying affidavit; costs to Defendant.
- Legal Topics
- Verifying Affidavit, Corporate Litigation, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K Orica (U) Limited
Plaintiff
Mitsui O.S.K. Lines Limited
Plaintiff
Kenya Ports Authority
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons to Strike Out Verifying Affidavit and Plaint
Legal Issues
- 1 Whether the verifying affidavit was properly sworn by an authorized agent or officer of the Plaintiffs.
- 2 Whether the absence of a proper verifying affidavit renders the plaint incompetent and liable to be struck out.
- 3 Whether the Plaintiffs should be granted time to file a proper verifying affidavit.
Ratio Decidendi
The court found that although Inchcape Shipping Services Ltd was admitted as an agent of the Plaintiffs, there was no evidence that Mr. Nyangala, who swore the verifying affidavit, was an authorized agent of either Plaintiff. Being merely an employee of the agent was insufficient to establish the necessary nexus. Consequently, the verifying affidavit was struck out. However, following the Court of Appeal's guidance, the court exercised its discretion to allow the Plaintiffs 30 days to file and serve a proper verifying affidavit. Failure to do so would result in the plaint being struck out with costs to the Defendant. The Defendant was also awarded the costs of the application.
Court Disposition
Application partially allowed; verifying affidavit struck out; Plaintiffs granted 30 days to file proper verifying affidavit; costs to Defendant.
Orders
- The verifying affidavit sworn by Mr. Nyangala on 14th September 2005 is struck out.
- The Plaintiffs shall within 30 days file and serve a proper verifying affidavit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 200 of 2005
K ORICA (U) LIMITED
MITSUI O.S.K. LINES LIMITED....................................PLAINTIFFS
VERSUS
KENYA PORTS AUTHORITY.......................................DEFENDANT
*************
RULING
The Defendants Chamber Summons dated the 31st August 2006 seeks under Order 7 Rule 1(2) and (3) and Section 3A of the Civil Procedure Act the striking out of the verifying affidavit and consequently the plaint itself on the ground that the verifying affidavit has not been sworn by an officer of either of the Plaintiffs.
Mr. Noorani for the Defendant submitted that Mr. Wilson Nyangala who swore the verifying affidavit is an officer of Inchcape Shipping Services Ltd which is not a Plaintiff in this case. He submitted that the Plaintiffs being corporations a verifying affidavit could only be sworn on their behalf by an authorized agent as provided under Order 3 Rule 2 of the Civil Procedure Rules. As Mr. Nyangala has not even claimed to be an agent of either of the Plaintiffs the verifying affidavit should be struck out. Consequent upon striking out of the verifying affidavit he said the plaint itself should also be struck out.
Mr. Omondi for the Plaintiffs holds a different view. According to him Mr. Nyangala being an employee of Inchcape Shipping Services Kenya Limited an agent of the Plaintiffs he was duly authorized to swear the verifying affidavit. He concluded that as the issue of Inchcape Shipping Services Kenya Ltd’s agency of the Plaintiffs is pleaded in the plaint and admitted in the defence if the replying affidavit is struck out then the Plaintiffs should be given 45 days to put their house in order by filing a proper verifying affidavit. He said taking that course will not prejudice the Defendant in any way.
The objective of verifying affidavits is to avoid suits being filed without the authority of the Plaintiffs themselves. That is why Order 7 Rule 1 requires that the filing of plaints should be accompanied by verifying affidavits sworn by the Plaintiffs themselves as authority that the suits are filed with their authority. I agree with Mr. Noorani that in the case of a corporation a verifying affidavit should be sworn by an officer of the corporation duly authorized to do so. In this case although the Defendant has admitted that Inchcape Shipping Services Ltd is an agent of the Plaintiffs there is nothing to show that Mr. Nyangala who swore the verifying affidavit is an authorized agent of either of the Plaintiffs. Being merely an employee of the agent is not enough. In the circumstances there is no nexus between him and the Plaintiffs. Consequently I grant prayer 1 of the application and strike out the verifying affidavit sworn by the said Nyangala on 14th September 2005.
Striking out of a verifying affidavit does not automatically render the plaint incompetent. As stated by the Court of Appeal in Joseph Sigilai –Vs- Gotak Sanik Ltd & 4 others Civil Appeal No. 98 of 2003in such an eventuality the court has a discretion of either striking out the plaint or giving the Plaintiff time to file a proper verifying affidavit. Exercising my discretion in this matter I grant the Plaintiff’s plea for time to file and serve a proper verifying affidavit and order that the Plaintiffs shall within 30 days of the date hereof file and serve a proper verifying affidavit failing which the plaint in this suit shall stand struck out with costs of the suit to the Defendant. The Defendant shall have the costs of this application.
DATED and delivered this 17th January 2008.
D.K. MARAGA
JUDGE