[2001] KEHC 853 (KLR)
The court found that although the plaint was accompanied by an affidavit, the affidavit did not specifically verify the correctness of the averments in the plaint as required by Order 7 rule 1(2) of the Civil Procedure Rules. The affidavit merely stated that the plaintiff had read and understood the plaint and...
Source-derived case information.
- Citation
- [2001] KEHC 853 (KLR)
- Parties
- Plaintiff: Paul Koinange; Defendant: Kipkoriri & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2040 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- plaint struck out with costs to the defendant
- Legal Topics
- Verifying Affidavit, Striking Out Pleadings, Order 7 Rule 1, Pleadings Requirements
- 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
Paul Koinange
Plaintiff
Kipkoriri & Others
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint was accompanied by a verifying affidavit as required by Order 7 rule 1(2) of the Civil Procedure Rules.
- 2 Whether the contents of the verifying affidavit met the statutory requirement to verify the correctness of the averments in the plaint.
Ratio Decidendi
The court found that although the plaint was accompanied by an affidavit, the affidavit did not specifically verify the correctness of the averments in the plaint as required by Order 7 rule 1(2) of the Civil Procedure Rules. The affidavit merely stated that the plaintiff had read and understood the plaint and verified the facts therein, but did not state that the averments were correct. The court held that this did not satisfy the statutory requirement, and therefore, in law, the plaint was not accompanied by a proper verifying affidavit. Allowing the plaintiff to file a new verifying affidavit would defeat the requirement that such affidavit must accompany the plaint at the time of...
Court Disposition
plaint struck out with costs to the defendant
Orders
- The plaint is struck out.
- Costs awarded to the applicant/defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO 2040 OF 2000
PAUL KOINANGE …………………..…. PLAINTIFF
VERSUS
KIPKORIRI & OTHERS……........…DEFENDANTS
RULING
This application is seeking an order that the plaintiff’s suit against the defendants be struck out and costs of this application and suit to be awarded to the defendants on grounds that the plaint is not accompanied by an affidavit verifying the correctness of the averments contained in the plaint. The respondent/plaintiff in its replying affidavit states that the plaint was filed with the verifying affidavit as required by the Civil Procedure Rules and both the plaint and the verifying affidavit were served upon the applicants.
It is clear that the plaint had an affidavit accompanying it. The contents of that affidavit however are as follows:
“I Paul Koinange of PO Box 42905, Nairobi do hereby solemnly make oath and state as follows:
1. THAT I am the plaintiff in this case and competent to swear this affidavit.
2. THAT I have read and understood the plaint herein filed against the defendants and verify the facts therein.
3. THAT there is no other suit past or present that has been filed by me herein against the defendants in respect of the claim in the plaint.
4. THAT what is deponed to herein is true and within my personal knowledge.”
Order 7 rule 1(2) states as follows:
“(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in the plaint”.
It will be clear from the above rule that the verifying affidavit accompanying the plaint is required to verify the correctness of the averments in the plaint. For example, the plaint states at paragraph 10 that there is no pending proceedings nor has there been any suit between the plaintiff and the defendants on the same subject matter. That is to be verified as correct by the verifying affidavit. Looking at the verifying affidavit attached to the plaint all it says is that it verifies the plaint and the facts therein, but does not state whether they are verified as correct or not. That in my humble opinion, does not meet the requirement of a verifying affidavit and thus the plaint before me is not in law accompanied by a verifying affidavit as is required by subrule 2 of order 7 rule 1. To allow the respondent/plaintiff to file another verifying affidavit will in effect mean that the other verifying affidavit will not be accompanying the plaint.
This plaint is struck out with costs to the applicant/defendant. Orders accordingly.
Dated and delivered at Nairobi this 15th day of February, 2001
J.W. ONYANGO OTIENO
………………………..
JUDGE