Muvengi v Muhindi (Civil Appeal 227 of 2023) [2026] KEHC 7008 (KLR) (21 May 2026) (Judgment)

Muvengi v Muhindi (Civil Appeal 227 of 2023) [2026] KEHC 7008 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7008 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal 227 of 2023 TW Ouya, J May 21, 2026 Between Onesmus Mutuku Muvengi Appellant and Isaiah Ngarariga Muhindi Respondent (Being an Appeal from the ruling of the Ruling of the Chief Magistrate at Thika delivered on 9th May 2023 by Hon. S. Atambo) Judgment 1.The appeal herein emanates from a claim lodged vide a plaint dated 30th March 2022 seeking compensation following a road traffic accident involving his motor vehicle registration number KCB 203D and the Respondent’s motor vehicle registration number KZX 262. The Plaint was accompanied by a verifying that had not been commissioned as required by law. The Respondent entered appearance and filed his statement of defence pointing out that the suit was defective as the verifying affidavit was not commissioned. The Appellant conceded that the failure to commission the verifying affidavit was an inadvertent mistake. Consequently, the Respondent filed a Preliminary Objection seeking to strike out the Plaint for being incompetent. 2.The trial court, relying on CMC Motors group Limited v Bengeria arap Korir T/A Marben School & another [2013] KLR, upheld the preliminary objection and struck out the suit. 3.Aggrieved and dissatisfied with the ruling of the court, the appellant lodged the instant appeal on grounds that:i.The learned trial magistrate erred in law and in fact in striking out the Plaintiff’s suit solely on the ground that the verifying affidavit was bot commissioned;ii.The learned trial magistrate erred in law and in fact in failing to find that failure to file a commissioned verifying affidavit is a curable procedural technicality which should not warrant the draconian measure of striking out the entire suit.iii.The learned trial magistrate erred in law and in fact in failing to appreciate that to cure the mistake of filing a defective verifying affidavit, the Plaintiff had filed together with the Reply to defence, a commissioned verifying affidavit which the honourable court ought to have considered and admitted as being properly on record.iv.The trial magistrate erred in law and in fact in disregarding the appellant’s submissions and judicial authorities which emphasized on the need to uphold substantive justice by sustaining the suit rather than dismissing the entire suit due to procedural flaws. 4.Reason wherefore the appellant urged this honourable court to set aside the ruling of the trial court and substitute it with an order reinstating the suit. And that the commissioned affidavit filed with the Reply to the defence be deemed as properly on record. 5.The court directed that the appeal be canvassed through written submissions. 6.The Appellant submitted that the purpose of a verifying affidavit was to verify the content of the Plaint and that purpose may be attained by rejecting a defective affidavit and ordering that a fresh and complying one be made and filed as was held in the case of Microsoft Corporation vs Mitsumi Computer Garage Ltd and Mitsummet (K) ltd HCCC No. 810 of 2010. 7.Accordingly, the appellant in a bid to correct the error of filing a non-commissioned affidavit while filing the reply to defence conceded to the mistake and proceeded to file a compliant verifying affidavit. Hence, by the time the Respondent was filing the Preliminary Objection on 8th August 2025, a compliant verifying affidavit had already been filed. The appellant therefore submitted that the trial court ought to have considered the defect as curable and deemed the verifying affidavit as properly on record. reliance was placed on the case of Shashikant C. Patel v Oriental Commercial Bank [2005] KEHC 139 (KLR). 8.It was also submitted that a defective verifying affidavit does not render the suit fatally defective as the court has discretion pursuant to Order 4 rule 2 to sustain or strike out a suit for non-compliance. In any case, such a defect is a procedural technicality curable under Article 159 (2) of the Constitution. Therefore, the trial court erred in striking the suit merely based on a defective affidavit. The appellant thus prayed that the suit be instituted and the compliant affidavit be deemed as properly on record. 9.The Respondent on the other hand submitted that the trial court properly directed her mind to the applicable law and principles by clearly distinguishing substantive from procedural requirements. Therefore, the finding of the trial court was legally sound. Citing the case of Pius Njogu Kathuri v Joseph Kiragu Muthura & 3 others [2018] eKLR, the Respondent submitted that for the court to admit an affidavit it must be an affidavit. It must have been sworn. It is sworn when it is commissioned by a person authorized to administer oaths. The defect is not on form nor is it a technicality. Further reliance was also placed on Supersonic Travel & tours ltd & 3 others vs National Bank of Kenya Ltd [2005] eKLR. 10.It was the Respondent’s position that the defect in the affidavit is not a matter of procedure, it goes to the substance of the affidavit and therefore is incurable under Article 159 (2) of the Constitution. Accordingly, the trial court properly directed itself in rejecting and or ignoring the verifying affidavit. 11.This being a first appeal, I am guided by the decision of the Court of Appeal in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, wherein the court stated thus:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 12.Therefore, it is my duty to re-evaluate the evidence afresh taking into account that I did not have the opportunity of seeing or hearing the witnesses testify. 13.I have considered the rival submissions of both parties. I have also perused the impugned Verifying Affidavit. I agree with the Respondent that the Affidavit has not complied with the requirements in the Oaths and Statutory Declarations Act as it is not commissioned. It is therefore a defective Affidavit. What I now need to determine, are the consequence of such defect and whether the trial court properly exercised its discretion in striking out the suit. 14.Section 5 of the Oaths and Statutory Declarations Act provides that:Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 15.Order 4 rule 2 of the Civil Procedure Rules provides that:"The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in in the Plaint." 16.The case of Pius Njogu Kathuri v Joseph Kiragu Muthura, Julius Maingi Muthusi & Independent Electoral & Boundaries Commission [2017] KEHC 864 (KLR) is distinguishable from the instant case. The case dealt with the issue of an affidavit in support of an election Petition that had been commissioned by an unqualified person. It is trite that while an affidavit in support of a Petition is meant to introduce evidence of the issues raised in the election Petition, a verifying affidavit does not seek to introduce evidence, its role is simply to verify/authenticate the averments in the Plaint. To that extent, although the case speaks to the manner of attestation and commissioning of affidavits, its ratio should best be construed in the context of affidavits of similar nature. 17.The Court of Appeal’s decision in Joshua Gawo & others v Nairobi City Council & others [2001] KECA 251 (KLR), although addressing the importance of a verifying affidavit, is also distinguishable from the case herein. In the Gawo case, the Plaint was not accompanied by an affidavit, instead the Plaintiff made A Chamber Summons Application with prayers like those in the Plaint and the same was accompanied with a supporting affidavit. Counsel for the Plaintiff contended that the affidavit in support of the application was sufficient to accompany the Plaint too. The Court of Appeal was categorical that the provisions of Order 4 rule 2 requiring every Plaint to be accompanied by a verifying affidavit is couched in mandatory terms. 18.While the Plaint in the Gawo case (Supra) was not accompanied by any verifying affidavit, the Plaint subject of this Appeal is accompanied by a non-commissioned verifying affidavit. What then should be the fate of such a Plaint? 19.Faced with a similar situation, Prof (Dr) Nixon Sifuna J in the persuasive decision of Simba v Tulu (Civil Case E015 of 2024) [2025] KEHC 14130 (KLR) (Civ) (8 October 2025) (Ruling) remarked thus:“ 6.The purpose of a court of law, is to dispense justice. Where a party is in error or at fault, the court will in the interest of justice consider whether or not to avoid drastic and dire consequences. Especially where the error or fault can be cured by an amendment of the pleadings, directions on the proper procedure, or leave to file a compliant pleading. 7.Where the other party has suffered or is likely to suffer prejudice as a result of that error or fault, the court will consider whether that prejudice can be compensated by an award of costs. Indeed, costs are a cure for many litigation’s errors, faults and goofs. 8.I am of the view that defects in a Verifying Affidavit cannot invalidate the suit itself; and invalidating the Verifying Affidavit with a focus to invalidating the suit itself, can be oppressive. Even with the defects in the Verifying Affidavit, I find that this is a proper case for exercising my discretion in the interest of substantive justice and spare this suit from the axe so that it may proceed to trial and be determined on its merits. 9.For those reasons, I hereby strike out the Verifying Affidavit on record; but grant to the Plaintiff, leave to file a compliant one. Afterall, as I have already stated in this ruling, the mere fact that a Verifying Affidavit is defective, does not render the entire suit defective. In any case the Defendant has in this Application only attacked the Verifying Affidavit, and not the Plaint.” 20.I have also noted that Kasango J. (as she then was) when faced with a similar situation in Supersonic Travel & Tours Ltd & 3 Others v National Bank of Kenya Ltd [2005] eKLR opined that a breach of an Act of Parliament cannot be said to be a mere irregularity when the counsel for the Plaintiff invited the Court to consider the failure to indicate the location of attestation of an affidavit as an irregularity that was curable under Order 19 rule 7 (formerly Order 18 rule 7) which provides that:The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality. 21.The Court in the Supersonic case (Supra) struck out the verifying affidavit consequently resulting in the striking out of the Plaint for it was unaccompanied with a verifying affidavit. 22.Considering the two conflicting positions taken by different benches of this court and the fact that the Supersonic case (supra) was decided prior to the Constitution of Kenya 2010 which embodies the right of access to justice. I am persuaded that the position adopted in Simba v Tulu (supra) resonates more with the spirit of the Constitution. 23.In the instant case, the Appellant seeks compensation from the Respondent following a traffic accident that was allegedly occasioned by the Respondent’s negligence. It is in the interest of justice that the suit be determined to its logical conclusion. The law should not be used as a tool to sanction and perpetuate prejudice because of an error or fault that can be corrected without a huge burden on the Respondent. Furthermore, it is evident that counsel conceded his mistake and promptly took initiatives to make amends in the interest of justice. 24.Flowing from the above, I hereby allow the appeal. 25.Final orders:i.Appeal allowedii.The finding of the trial court, striking out the appellant’s is set asideiii.The Appellant’s suit be reinstated to be heard on a priority basis before a different judicial officer. The Appellant is further directed to file a new verifying affidavit within 7 days.iv.No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 21ST DAY OF MAY 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Mutua for the RespondentMs. Amisi for Mr. Kiugu for the AppellantHamza/Kevin – Court Assistant