[2008] KEHC 2384 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 913 of 2003

PASCAL AKONGO SIHUDU, ANDREW

MKUBWA ANGANI & 32 OTHERS..................................PLAINTIFF

VERSUS

THE ATTORNEY GENERAL :.....................................:DEFENDANT

RULING

The Plaintiff herein came to this Court vide A Plaint dated at Nairobi on the 29th day of August, 2003 and filed the same date. It has a total of 34 plaintiffs. It is accompanied by a verifying affidavit endorsed by all the 34 plaintiffs.

The summons issued on 5th September, 2003 were issued and served. The defendant entered appearance dated 29th September, 2003 on 1st October 2003.

The defendant appears to have filed a defence dated 17th January 2005. This prompted the Plaintiff to come to this court by way of chamber summons. It is indicated to have been brought under order 13 rule 1(c) (d) of the Civil Procedure Rule and Section 3A of the Civil Procedure Act. It seeks orders, that the defendants’ defence dated 17th January 2005 be struck out and that costs be provided for.

The grounds in support are set out in the body of the application, supporting affidavit written skeleton arguments, high lights on the written skeleton arguments and case law. The major ones are that:-

(1) The Plaintiff upon filing of the plaint took out summons to enter appearance and served them on to the defence on 23rd September 2003.

(2) Thereafter the defendant entered appearance dated 29th September, 2003 and filed on 1st October, 2003.

(3) No defence was field by them within the stipulated period.

(4) Thereafter the plaintiff took dates severally for the assessment of damages. The defendants were invited to participate in the fixing of dates for assessment of damages because they had entered an appearance.

(5) Much later on is when the defendants slotted in a defence without leave of the Court.

(6) The slotting in of the defence out of time prompted the plaintiff applicant to present the current application subject of this ruling seeking striking out of the said defence.

(7) The grounds for the assault on the said defence is two fold.

(a) It is incompetent as it was filed out of time. Proved by the fact that:-

- notice of intention to sue was served on to the defendant on 29. 8.2003.

- Plaint and summons to enter appearance were served on to the defence on 23. 9.2003.

- A memorandum of appearance was filed by the defendant on 1. 10. 2003, the same having been dated 29. 9.2003.

- On 11. 4.2005 is when the defence was filed.

- On 18. 4.2005 is when the defence was served on them.

(b) That the said defence is just a sham as it contains mere denials.

(8) They contend they are both within the law and the principles of case law in seeking the relief they are seeking from the court.

The defence on the other hand opposed the application on the basis of grounds of opposition dated 1st November, 2007 and filed on 5th November, 2004. These are:-

(a) The application is mis conceived, bad in law and an abuse of the court process.

(b) That the plaint served on 23rd September, 2003 and the memorandum of appearance dated 29th September, 2003 was filed and served on 1st October, 2003.

(c) That they sought instructions from their client, the Secretary Public Service Commission on 3rd October, 2003, warning him of the likelihood of a judgement if they failed to file a defence by 15th October, 2003.

(d) That their client wrote to the permanent secretary ministry of transport/communication on 7th November, 2 003 for instructions.

(e) That on 13th January, 2005 they wrote to their client and also to the Ministry of Transport and Communication enclosing a copy of the Plaint and hearing notice for instructions.

(f) That having received instructions they filed a defence dated 17th January 2005.

(g) That the application before this court is not necessary nor is it urgent since it was filed on 6th September, 2005 and took over 2 years to be set down for hearing. Therefore the applicant is guilty of laches and the said application should be dismissed and the suit be set down to be heard on merits.

In their written skeleton arguments as well as oral high lights in court, Counsel for the respondents just reiterated the grounds and then set out case law.

On case law Counsel for the Plaintiff applicant relied on the case of PHARMACEUTICAL MANUFACTURING CO. LTD VERSUS NOVELITY MANUFACTURING LTD [2001] KLR 292 where it was held inter alia that, where the defendant has not traversed or sufficiently traversed the allegations of fact made by the Plaintiff in the plaint, by clint of Order VI rule 9 (1) and (3) of the Civil Procedure Rules, those allegations of fact are deemed to be admitted.

The case of TULIP APARTMENT LTD AND ANOTHER VERSUS SOURTHERN CREDIT BANKING CORPORATION LTD. AND ONOTHER [2002] 2 KLR 357 where Rimita J., as he then was held inter alia that, the first defendant had failed to file a defence within 15 days after entering appearance and this was clearly in contravention of order VIII rule 1(2) of the Civil Procedure rules. The defence could not stand.

The case of WAIBOCI AND ANOTHER VERSUS PASHITO HOLDING LTD AND 7 OTHERS [2004] 2 KLR 425 where Ojwang Ag. J. as he then was (now J.) held inter alia that an adversarial system operates on the principle that every suitor comes with a specific claim, asserts his position and seeks remedies against his opponent. The opponent squarely addresses the claims by traversing them in the pleading and then leading evidence in the form of things perceived and tending to establish the claims in the pleadings.

(2) All quotations before the Court requiring adjudication must be brought for hearing before a judge and the Deputy Registrars’ mandate and jurisdiction are strictly limited to the application of automatic out comes of the play of the rules of civil procedure.

The Respondents on the other hand relied on the decision of J.P.Ojwang J. delivered on 28th day of January 2005 in the case of ISAAC CALEB SHIVACHI VERSUS THE SECRETARY TEACHERS SERVICE COMMISSION AND THE TEACHERS SERVICE COMMISSION, NAIROBI HCCC NO. 81 OF 2004.

At page 2 of the said ruling line 4 from the bottom, it is observed. “M/s Oyangi for the Plaintiff submitted that the provisions of Order VIII rule 1 is mandatory, and the defendant was required to file a defence within 15 days of filing and serving the memorandum of appearance. No explanation at all had been given for this omission”.

At page 3 thereof line 6 from the bottom the learned judge went further to observe “Learned Counsel, Mr. Bita submitted that since the plaintiff had not applied for judgment, when he very well could have done so, by his hesitation he did create more time for the defendant to quite lawfully put in a valid defence.”

At line 2 from the bottom on the same page 3, the learned judge quoted with approval the case of TRUST BANK LTD VERSUS AMALO COMPANY LTD CIVIL APPEAL NO. 215 OF 2000. At page 4 line 1 the learned judge observed “The essential point in this case is that the court must in general, be guided on the question of striking out of pleadings on technical grounds by the primacy of allowing a hearing of disputes on the merits, an object to be ensured always so far as possible.”

At line 19 from the bottom is found the learned judges’ quotation from the said trust bank Ltd case (supra) thus “The principle which guides the court in the administration of justice when adjudicating on any dispute is that where possible disputes should be heard on their own merit. As was succinctly put a while ago Georges C.J. I (Tanzania) in the case of ESSANJI AND ANOTHER VERSUS SOLANKI [1968] E.A. at page 224.

“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors should not necessarily deter a litigant from pursuing his right . . .”

At line 3 from the bottom the principle enunciated by the Court of Appeal is quoted thus “That (i.e. the principle in the Essanji case) accords with the policy of the law as can be gleaned from order IX(1) of the Civil Procedure Rules where by a litigant has the right to appear, file his defence, and be heard before any interlocutory or final judgment is entered in default against him regardless of any time limit. The spirit of the law is that as far as possible in the exercise of judicial discretion the court ought to hear and consider the case of both parties in any dispute in the absence of any good reason for it not to do so”.

At line 13 from the bottom on pages 5 the learned judge quoted Bosire JA in the case of CENTROL BANK OF KENYA VERSUS UHURU HIGH WAY DEVELOPMENT LTD AND OTHERS. In C.A. No.75 of 1998 thus “I am therefore unable to subscribe to the view expressed by Mr. Ribello that documents filed out of time in response to an application are necessarily in valid and should not be looked at. To my mind, a court, is obliged to consider them unless for a reason other than mere lateness, the court considers it undesirable to do so. Besides the learned judge in the court below fell into error when he said that a failure to file grounds of opposition automatically entitles the applicant to orders exparte”.

At page 6 line 10 from the bottom after reviewing the law on striking out the learned judge, observed thus “the state of the law on striking out of defences I think is a abundantly clear from the case law which I have reviewed herein above. I think it is clear that I am bound by these authorities, but to put the matter beyond doubt, I will here set out the content of order IX rule 1. “A defendant may appear at any time before final judgment and may file a defence at any time before interlocutory judgment is entered against him or if no interlocutory judgment is so entered, at any time before final judgment”.

At page 7 line 1 from the top it is observed “the plain meaning of the provisions set out above is that there is an open time- frame for the filing of the statement of defence so long as the plaintiff has not made a valid limitation of this time – frame by securing an interlocutory judgment. For so long as the plaintiff has not asserted himself in that manner and shortened the open time from available to the defendant, the plaintiff is not allowed to levy claims to the un limited time – frame as it belongs to the defendant”.

A ruling by Kasango J. delivered on the 4th February, 2004 in the case of FRANCIS MAINA NDUATI VERSUS ACHELIS MAERIAL HOLDINGS LTD NAIROBI MILIMANI COMMERCIAL COURT CASE NUMBER 487 OF 2003. The bone of contention in the cited case was that the defence had been filed outside time without leave of the court.

At page 3 of the said ruling the learned judge quoted in extensor, the provisions of order 9(1) of the Civil Procedure Rules already set out above. At line 7 from the top of page 2 learned judge quoted Counsel for the defendant as saying that the provisions of order 9 (1) Civil Procedure Rules seemed to be in contradiction with the provisions of order VIII rule 1(2) which states “where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the Court file his defence within 15 days after he has entered an appearance in the suit”.

At line 6 from the bottom of page 2 the learned judge observed thus:-

“The Court does not consider these two rules to be in contradiction. The order VIII rule 1(2) provides the period within which a defence ought to be filed and failure to so file the plaintiff would be at liberty to apply for judgment in default of an appearance.”

When the Plaintiff so fails to so apply for judgment, the order IX rule 1 provides the defendant lee way to file a defence any time before interlocutory judgment. That being the case the defendants defence filed herein was indeed filed in time in that there was no interlocutory judgment entered in favour of the plaintiff at the time of filing thereof”.

This court has given due consideration to the rival arguments set out above and considered them in the light of both the provisions of law relied upon above and case law. It is clear, the attack on the defence, is two fold namely, the technical front and the merit front. Before dealing with these, the court has to satisfy itself that it is properly seized of the application in the first instance. In the second instance the court has to satisfy itself that the application is properly anchored although no objection has been raised against the application. Lack of objection from the defence does not preclude the court from perusing the record to determine whether the pleadings are in order or not.

The application is indicated to have been presented under order 13 rule 1 (c) (d) of the Civil Procedure Act. The court, has given due consideration to this heading and finds that it is erroneously headed as the Civil Procedure Rules do not have Order 13 rule 1 (1) of the Civil Procedure Rules. What is provided for is order VI rule 13 (1) (c) (d). This misdescription is not however fatal to the application it is curable under order VI rule 12 Civil Procedure Rules which provides:-

“No technical objection may be raised to any pleading on the ground of any want of form”.

Also order 50 rule 12 Civil Procedure Rules which provides “every order, rule or other statutory provisions under or by virtue of which any application is made must ordinarily be stated but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule”.

By virtue of those provisions the application is competent to be disposed off on its own merits, and so the court is properly seized of the matter.

Disposing off the technical aspect of the heading of the application ushers in the need for the consideration of the merit aspect of the application. This presupposes that the application is properly anchored on a valid plaint. Though no objection was raised on the plaintiffs plaint by the defence, the court is not precluded from revisiting the record to determine the validity of the plaint. The court has done so on its own motion and found that the verifying affidavit has been endorsed by all the plaintiffs as it is purported to have been deponed by all of them at the same time. The court has therefore to determine firstly whether:-

(1) There is provision for a joint affidavit within the law governing affidavits.

(b) If there is no provision for a joint affidavit, then its effect on the verifying affidavit relied upon herein.

This court has made observations on the issue of joint affidavits in own rulings, one dated and delivered on 27th day of July 2007 in the case of MESHACK RIAGA OGALO AND SEVEN OTHERS VERSUS HENRY MICHAEL OCHIENG AND 4 OTHERS NAIROBI HCCC ELC 30 OF 2007, pages 11 – 13, and one dated 13th day of December 2007, in the case of EDWIN ASAVA MAJANI AND 2 OTHERS VERUS TELEKOM KENYA LTD NAIROBI HCCC NO. 460 OF 2007, pages 14 – 16 of the said ruling.

In these two rulings the court had occasion to revisit the provisions of order 18 Civil Procedure Rules on the subject. The salient features of this courts findings in both rulings are as follows:-

(1) That order 18 rule 3 (1) of the Civil Procedure Rules provides that an affidavit shall be confined to such facts as the “deponent” is able of his own knowledge to prove. Where as rule 4 on the other hand provides that every affidavit shall state the description, the place of abode and postal address of the “deponent.”

(2) That the operative words in rule 3 (1) and 4 refer to a “deponent” and not “deponents”.

(3) That in view of the construction in number 2 above the court made findings that the intention of the legislature or the rules committee is that there shall be one “deponent” to an affidavit and if there is need for more than one then the additional party swears a supporting affidavit.

(4) That if joint affidavits were receivable in evidence, there would have been provision for words such as these “or deponents” in both rules 3 (1) and (4).

(5) This court still holds the same view on joint affidavits. For this reason, the joint verifying affidavit has been faulted.

The effect of such faulting on the plaint, has to be determined by a construction of the relevant provision dealing with a verifying affidavit. This is none other than order 7 rule 1 (2) and (3) which provide:-

“1 (2) the plaint shall be accompanied by an affidavit sworn by the plaintiffs verifying the correctness of the averments contained in the plaint.

(2) The court may of its own motion or on the application of the defendant order to be struck out any plaint which does not comply with sub-rule (2) of this rule.”

Guidelines on the construction of this provision is provided by the court of appeal in its decision, in the case of RESEARCH INTERNATIONAL EAST AFRICA LTD. VERSUS JULIUS ARISI AND 213 OTHERS NAIROBI CA 321 OF 2003. The summary of the relevant point from this authority, was whether a verifying affidavit, deponed by the plaintiff is attributable to the rest of the plaintiffs who had not filed an authority in writing authorizing him to so depone. The decision on the rule is found at page 5 – 10 of the said ruling. This court in the Edwin Asava Majani case (supra) adopted extracts of the said court of appeal reasoning in the Research International East Africa Ltd. case (supra) running from pages 18 – 20, thereof. The salient features of that reasoning are as follows:-

(1) That order VI Rule 1 (2) of the Civil Procedure Rules is silent as to whether each plaintiff should file a verifying affidavit.

(2) That there is no need for fling affidavit by each plaintiff as what is to be verified is the correctness of the averments and not their truthfulness.

(3) That the truthfulness of the claim is a matter for the trial.

(4) That the verifying affidavit of one plaintiff is sufficient.

(5) That the court has power to order each claimant to file a verifying affidavit instead of striking out a suit.

(6) That where the action filed is not a representative action, each of the plaintiffs is personally responsible for the conduct of own suit and none of the other plaintiffs has authority to take action on behalf of any other without any express authority in writing.

(7) That order 1 rule 12 (2) Civil Procedure Rules makes provision that, “where there are more plaintiffs, then anyone or more of them may be authorised by any other of them to appear, plead or act for such other in any proceedings and in like manner where there are more than one defendant, any one of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.”

(8) That such authority granted should be in writing and filed in the case.

(9) That in cases where there are numerous plaintiffs than one, each of them is required to verify the correctness of the averments by a verifying affidavit unless and until, he expressly authorizes any of the co-plaintiffs or some of them in writing and files such authority in the court to file a verifying affidavit on his behalf.

(10) That an affidavit having been so authorized will be sufficient compliance with the rules.

(11) That consequences of non-compliance with the filing of the verifying affidavit totally or filing a defective one renders the suit to be liable to be struck out.

(12) However under order VII Rule 1 (3) Civil Procedure Rules the court has jurisdiction, instead of striking out the plaint, the court can make any other appropriate orders such as giving the plaintiffs an opportunity to comply with the rule.

At page 12 of the ruling in the EDWIN MAJANI ASAVA CASE (supra) line 2 from the top, the court, observed, “the technical front arise because it is necessary to determine that both the plaint on which the interim application is anchored is competent, that is, it has been procedurally presented to court both in content and format.” At page 20 line 3 from the bottom the court went on “as stated earlier in the ruling, the issue of the verifying affidavit has featured in this interlocutory proceedings, because it is a requirement of the law that this court has judicial notice, of that an interlocutory proceeding be anchored on a competent plaint.”

Applying the above salient features of the reasoning in the EDWIN ASAVA MAJANI CASE as borrowed from the court of appeal, reasoning in the case of RESEARCH INTERNATIONAL EAST AFRICA LTD. (supra) the verifying affidavit purported to have been sworn by all the plaintiffs is alien in law. By virtue of this, it is defective, and being defective, it is incompetent to be able to form a basis for verifying the correctness of the content of the plaint; and it is therefore a proper candidate, for striking out which the court hereby proceeds to strike out the said defective verifying affidavit.

The striking out of the said verifying affidavit in the circumstances of this case, does not lead to the faulting of the plaint and the court finds that this is a proper case where the plaint can be saved by allowing the applicant to comply with the rule. This is done by directing the plaintiffs to nominate one of their own to depone an affidavit and then file an authority in the case signifying such nomination.

The court notes from the record that the plaintiffs complied with the rules in so far as the filing of the supporting affidavit as well as further supporting affidavit is concerned.

As per the rules, a plaint which is not accompanied by a verifying affidavit is not a competent plaint. It is trite law, which this court, has judicial notice of, that a plaint which is not competent can not form anchor for a competent application. Such is the position of the application under review. For this reason the merits of the said application cannot be gone into.

In conclusion and on the basis of the reason above the court makes findings that:-

(1) That on this courts own motion upon perusing the verifying affidavit on record the court finds that the same is defective in that it purports to have been deponed by all the plaintiffs.

(ii) That there is no provision in order 18 Civil Procedure Rules for “deponents” of an affidavit. There is only provision of a “deponent”.

(2) That since the plaintiffs are more than one and the action filed is not a representative action, the provision of law mentioned above as well as principles of case law cited it was necessary for one plaintiff or more so desired to depone a verifying affidavit or affidavits individually on their own behalf and on behalf of co-plaintiffs.

(3) That the authority to depone on behalf of co-plaintiffs should have been granted in writing and filed in the case.

(4) Failure to comply with the rules as mentioned in number 2, 3 above renders the verifying affidavit.

(5) The verifying affidavit properly filed herein having been faulted as being invalid, that defect and or invalidity taints the suit.

(6) The suit being invalid it cannot anchor a valid application.

(ii) The application dated 5. 09. 2005 being invalid, it is a proper candidate for striking out and it is accordingly struck out.

(iii) By striking out the defective verifying affidavit the plaintiff is not left remediless.

(7) The court however exercises its discretion under order VII rule 1 (3) and allows the plaintiff to file a proper verifying affidavit within 30 days from the date of the reading of the ruling.

(8) After complying with number 7 above parties are at liberty to take whatever appropriate action they deem fit in the matter.

(9) The application having been faulted on appoint of technicality is not a proper candidate for Res judicata. The applicant will therefore have leave of this court to present a properly anchored application on a proper suit, should they deem it fit to do so and have the same considered on merit.

(10)Costs of the application will be in the cause.

DATED, READ AND DELIVERED AT NAIROBI THIS 23RD DAY OF MAY 2008.

R. N. NAMBUYE

JUDGE