[2007] KEHC 1432 (KLR)
The court found that the application and supporting affidavit, though dated prior to the filing of the suit, were actually filed after the suit had commenced. The discrepancy in dates was attributed to inadvertent typographical errors. The court held that, according to the Civil Procedure Rules, the relevant date...
Source-derived case information.
- Citation
- [2007] KEHC 1432 (KLR)
- Parties
- Plaintiff: Lawrence N. Mwangi (T/a Lawrence Mwangi & Co., Advocates); Defendant: The Standard Limited; Defendant: Kwendo Opanga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1130 of 2006
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Preliminary Objection, Striking Out Pleadings, Affidavit Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lawrence N. Mwangi (T/a Lawrence Mwangi & Co., Advocates)
Plaintiff
The Standard Limited
Defendant
Kwendo Opanga
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an application and supporting affidavit dated before the filing of the suit renders the application incompetent and incurably defective.
- 2 Whether typographical errors in the dating of court documents affect their validity.
- 3 Whether an affidavit sworn before the filing of a suit should be rejected.
Ratio Decidendi
The court found that the application and supporting affidavit, though dated prior to the filing of the suit, were actually filed after the suit had commenced. The discrepancy in dates was attributed to inadvertent typographical errors. The court held that, according to the Civil Procedure Rules, the relevant date for determining the validity of an application is the date of filing, not the date on the document. Furthermore, affidavits are not to be rejected solely because they were sworn before the suit was filed unless the court directs otherwise. There was no compelling reason to reject the affidavit in this case. Therefore, the preliminary objection raised by the plaintiff was not...
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the defendant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1130 of 2006
LAWRENCE N. MWANGI (T/a Lawrence Mwangi & Co., Advocates)......................PLAINTIFF
V E R S U S
1. THE STANDARD LIMITED
2. KWENDO OPANGA …………....….…….............................................................…DEFENDANTS
R U L I N G
The Plaintiff herein has raised a preliminary objection to the Defendants’ application by chamber summons filed on 16th January, 2007. That application seeks under Order 6, rule 13(1) (b) and (d) of the Civil Procedure Rules (the Rules) an order to strike out the plaint. The objection is taken mainly upon the ground that the application and the supporting affidavit pre-date the filing of the suit herein, and that therefore the application is incompetent and incurably defective. The suit was filed on 27th October, 2006.
I have considered the submissions of the learned counsels appearing and the one case cited. Indeed the application and the supporting affidavit pre-date the filing of the suit as they are dated 16th January, 2006. But bearing in mind the date on which the application was filed, that is 17th January, 2007, the appearance of the year 2006 in the date of the application and the supporting affidavit cannot but be inadvertent typographical errors. In any event, under Order 50, rule 14 of the Rules, an application is deemed to be made when filed. As already seen, the application was filed on 17th January, 2007. And under Order, 18, rule 9 of the Rules, unless otherwise directed by the court an affidavit shall not be rejected solely because it was sworn before the filing of the suit concerned. In this case I do not see any compelling reason why I should direct that the supporting affidavit be rejected.
The preliminary objection is clearly not well-taken. It is hereby overruled with costs to the Defendant. It is so ordered.
DATED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 7TH DAY OF DECEMBER, 2007