[2018] KEELC 4500 (KLR)

[2018] KEELC 4500 (KLR)

The court held that the Defendant, as the plaintiff in the counterclaim, was required to file a verifying affidavit at the time of filing the counterclaim, in accordance with Order 7 Rule 5(a) and Order 4 Rule 1(2) of the Civil Procedure Rules. The failure to do so rendered the counterclaim improperly before the...

Source-derived case information.

Citation
[2018] KEELC 4500 (KLR)
Parties
Plaintiff: Priska Onyango Ojuang'; Plaintiff: Jane Mildred Ojuang'; Defendant: Henry Ojwang Nyabende
Court
Environment and Land Court
Court Station
Environment and Land Court at Kisumu
Jurisdiction
Kenya
Case Number
Environment & Land Case 743 of 2015
Procedural Posture
Notice of Motion / Ruling on Application for Leave to File Verifying Affidavit Out of Time and Striking Out of Counterclaim
Outcome
application dismissed; counterclaim struck out with costs
Legal Topics
Verifying Affidavit Requirement, Counterclaim Procedure, Striking Out Pleadings, Late Filing of Affidavit
Source Language
en
Civil Procedure Land and Property Verifying Affidavit Requirement Counterclaim Procedure Striking Out Pleadings Late Filing of Affidavit

Source-derived case record

Summary, issues, holding and outcome

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Parties

Priska Onyango Ojuang'

Plaintiff

Jane Mildred Ojuang'

Plaintiff

Henry Ojwang Nyabende

Defendant

Procedural Posture

Notice of Motion / Ruling on Application for Leave to File Verifying Affidavit Out of Time and Striking Out of Counterclaim

Legal Issues

  1. 1 Whether a counterclaim filed without an accompanying verifying affidavit is a proper suit.
  2. 2 Whether a verifying affidavit can be filed long after the counterclaim has been filed.
  3. 3 Whether the Defendant is entitled to leave to file the verifying affidavit out of time.

Ratio Decidendi

The court held that the Defendant, as the plaintiff in the counterclaim, was required to file a verifying affidavit at the time of filing the counterclaim, in accordance with Order 7 Rule 5(a) and Order 4 Rule 1(2) of the Civil Procedure Rules. The failure to do so rendered the counterclaim improperly before the court and liable to be struck out. The court found that the Defendant's application to file the verifying affidavit out of time was made too late, after the Plaintiffs had already filed their submissions and closed their case, and allowing it would prejudice the Plaintiffs and unduly delay the proceedings. The court concluded that the omission was a fundamental procedural defect...

Court Disposition

application dismissed; counterclaim struck out with costs

Orders

  • The notice of motion dated 7th February 2015 is dismissed with costs.
  • The Defendant’s counterclaim contained in the statement of Defence dated 16th November 2011 and filed on 21st November 2011 is struck out with costs for failure to be accompanied with a verifying affidavit as required under Order 4 Rule 1(2) of the Civil Procedure Rules.