[2007] KEHC 953 (KLR)
The court held that the purpose of a verifying affidavit in a winding-up petition is to verify the contents of the petition, and that the failure to comply with the prescribed period for filing such an affidavit was due to a misinterpretation of the rules by the petitioner's advocate. Since the respondents did not...
Source-derived case information.
- Citation
- [2007] KEHC 953 (KLR)
- Parties
- Applicant: Michael Barasa Wafula; Respondent: Moses Kashonga; Respondent: Dionysius Nyagah; Respondent: Demotech Borehole Services Ltd
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- ? 1 of 2006
- Procedural Posture
- Winding Up Application / Ruling on Application for Leave to File Compliant Verifying Affidavit
- Outcome
- Application allowed; leave granted to file compliant verifying affidavit; costs to petitioner.
- Legal Topics
- Winding Up Petition, Verifying Affidavit, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Barasa Wafula
Applicant
Moses Kashonga
Respondent
Dionysius Nyagah
Respondent
Demotech Borehole Services Ltd
Respondent
Procedural Posture
Winding Up Application / Ruling on Application for Leave to File Compliant Verifying Affidavit
Legal Issues
- 1 Whether the petitioner should be granted leave to file a compliant verifying affidavit after filing a non-compliant one with the petition.
- 2 Whether striking out the initial verifying affidavit and granting leave to file a new one would prejudice the respondents.
Ratio Decidendi
The court held that the purpose of a verifying affidavit in a winding-up petition is to verify the contents of the petition, and that the failure to comply with the prescribed period for filing such an affidavit was due to a misinterpretation of the rules by the petitioner's advocate. Since the respondents did not oppose the application and would not be prejudiced by the grant of leave, the court struck out the non-compliant verifying affidavit and granted the petitioner leave to file a fresh, compliant affidavit within 10 days. The court emphasized that procedural rules should not be applied so rigidly as to defeat substantive justice, especially where no prejudice is caused to the other...
Court Disposition
Application allowed; leave granted to file compliant verifying affidavit; costs to petitioner.
Orders
- The verifying affidavit of the petitioner sworn on 9/8/2006 is struck out.
- The petitioner is granted leave to file a fresh verifying affidavit within 10 days from the date of the ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Winding Up Case 1 of 2006
MICHAEL BARASA WAFULA ===================PETITIONER
V E R S U S
MOSES KASHONGA
DIONYSIUS NYAGAH
DEMOTECH BOREHOLE SERVICES LTD ======RESPONDENTS
R U L I N G
The petitioner has sought leave to file a verifying affidavit that would comply with the Companies (Winding Up) Rules.
The verifying affidavit which is on record was filed in court on 14/8/2006, which is the very same date when the petition was filed in court.
As a verifying affidavit ought to be filed within 4 days after the petition was filed, the petitioner has realized that there is a real risk of the verifying affidavit being struck out. Therefore, he now asks that the verifying affidavit on record be deemed as withdrawn, and that he be given leave to file a compliant one.
If the leave sought is granted, the petitioner asks that such verifying affidavit as he would be permitted to file, should thereafter be deemed as having been filed within the period prescribed under Rule 25 of the Companies (Winding Up) Rules.
It is the petitioner’s explanation that his advocate had misinterpreted the rules, hence the decision to file the verifying affidavit contemporaneously with the petition.
Although the respondents were duly served with the application, they did not file any documents in answer thereto. They also did not attend court when the matter came up.
In the circumstances, the application was un-challenged.
In the case of MICROSOFT CORPORATION VS MITSUMI COMPUTER GARAGE LTD & ANOTHER, MILIMANI HCCC NO.810 OF 2001, the Hon. Ringera J. (as then was) had occasion to give consideration to the purposes for which a verifying affidavit was deemed necessary.
I appreciate the fact that in that case, the learned judge was applying his mental faculties to the issue of verifying affidavits within the context of Order 7 rule 1 (2) of the Civil Procedure Rules. However, I hold the considered view that the verifying affidavits which are filed in Winding-Up causes, serve, in principle, the same goals as those filed in civil actions governed by the Civil Procedure Rules.
The Hon. Ringera J. said;
“ The broad purpose of the verifying affidavitis thus to verify the contents of the plaint.”
In the same way, a verifying affidavit in a winding-up cause is supposed to verify the contents of the petition.
In my considered view, the respondents cannot be prejudiced if the petitioner was granted leave to file an affidavit to verify the petition. Accordingly, the verifying affidavit of the petitioner, Michael Barasa Wafula, which was sworn on 9/8/2006 is struck out, but the petitioner is granted leave to file a fresh verifying affidavit within 10 days from today.
The costs of the application dated 13/6/2007 are to be borne by the petitioner in any event.
Dated and Delivered at Kitale, this 24th day of January, 2007.
FRED A. OCHIENG
JUDGE