[2006] KEHC 1992 (KLR)
The court found that the verifying affidavit relied upon by the plaintiff was filed out of time and without leave of court, contrary to the express order made on 22-7-05. No extension of time was sought or obtained. The court emphasized that its orders are not made in vain and that procedural rules regarding the...
Source-derived case information.
- Citation
- [2006] KEHC 1992 (KLR)
- Parties
- Applicant: Mohammed Olunga Oduor; Respondent: The Mumias Outgrowers Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 93 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit for Non Compliance With Court Order
- Outcome
- suit struck out with costs to the defendants
- Legal Topics
- Verifying Affidavit, Striking Out Suit, Order Vii Rule 1 2, Order Vi Rule 13, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Olunga Oduor
Applicant
The Mumias Outgrowers Co. Ltd.
Respondent
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit for Non Compliance With Court Order
Legal Issues
- 1 Whether the suit should be struck out for failure to file a proper verifying affidavit within the time ordered by the court.
- 2 Whether the late filing of the verifying affidavit without leave of court can be excused.
- 3 Whether the verifying affidavit sworn by counsel instead of the plaintiff is competent.
Ratio Decidendi
The court found that the verifying affidavit relied upon by the plaintiff was filed out of time and without leave of court, contrary to the express order made on 22-7-05. No extension of time was sought or obtained. The court emphasized that its orders are not made in vain and that procedural rules regarding the filing of affidavits must be strictly adhered to. The argument that the delay was minor and should be overlooked was rejected as flippant. Consequently, the suit was struck out for non-compliance with Rule 1(2) of Order VII of the Civil Procedure Rules.
Court Disposition
suit struck out with costs to the defendants
Orders
- The suit is struck out for non-compliance with Rule 1(2) of Order VII of the Civil Procedure Rules.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 93 of 2001
MOHAMMED OLUNGA ODUOR ........................................................................APPLICANT
V E R S U S
THE MUMIAS OUTGROWERS CO. LTD. ...................................................RESPONDENT
RULING
In a ruling dated 22-7-2005, this court ordered that a proper verifying affidavit be filed and served within 21 days from that date (22/7/05) failing which the suit herein would stand struck out for want of compliance with Rule 1 (2) of Order VII of the Civil Procedure Rules.
On 31. 10. 2005, the 1st Defendant made an application under Order VI Rule 13A of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap 21, seeking orders that:-
(a) The suit be struck out for being incompetent and for failure to comply with the orders made on 22. 7.05 and costs. No affidavit was filed as the application was premised on Rule 13(1) (a) of Order VI and not as erroneously shown on Rule 13A of Order VI. I can excuse the error but counsel should be more circumspect.
When the application came up for hearing before me on 20. 3.06, Mr. Akwala, learned counsel for Applicant urged the court to strike out the suit because the verifying affidavit had not been filed within 21 days as ordered by the court on 22-7-05. Moreover, he submitted, the affidavit did comply with Order XVIII because it was sworn by counsel when it should have been filed by the plaintiff. The affidavit, he contended, did not also disclose the sources of the information. Mr. Kasamani, the learned counsel for the Respondent, submitted on the other hand that two affidavits were filed, one on 1/8/5 and the other on 12/8/05. He submitted that he relied on the affidavit filed on 12/8/05 and conceded that it was filed two days late but it was the substance that counted and the slight lateness could be overlooked. As regards the contents of the affidavit, he submitted that the averments were within the knowledge of the counsel deponing and that the affidavit was therefore competent.
The verifying affidavit relied on and filed in court on 12. 8.05 and sworn on 29. 7.05 by Mohammed Olunga Oduor, the Plaintiff, was filed out of time. Mr. Kasamani did not deny this fact. No extension of time was sought or obtained to file it out of time. It did not comply with the order made on 22-7-05. On this ground, it is struck out. Court orders are not made in vain and to say that the affidavit was only a little late was somewhat flippant.
As the suit has not complied with Rule 1(2) of Order VII of the Civil Procedure Rules, it is hereby struck out with costs to the Defendants.
Delivered, signed and dated at Kakamega this 18th day of May. 2006
G. B. M. KARIUKI
J U D G E