[2009] KEHC 1526 (KLR)
The court held that the plaint in question was filed in 1992, well before the 2000 amendment to the Civil Procedure Rules that introduced the requirement for a verifying affidavit. The law does not operate retrospectively unless expressly stated, and there was no such provision in the amendment. The court further...
Source-derived case information.
- Citation
- [2009] KEHC 1526 (KLR)
- Parties
- Plaintiff: The Registered Trustees of Mombasa Parish Anjuman; Defendant: Sushin Abdulkarim Ali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 458 of 1992
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JV Juma
- Legal Topics
- Preliminary Objection, Retrospective Application of Law, Verifying Affidavit Requirement, Commencement of Suit
- 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
The Registered Trustees of Mombasa Parish Anjuman
Plaintiff
Sushin Abdulkarim Ali
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaint filed in 1992 is invalid for lack of a verifying affidavit as required by the Civil Procedure Rules amended in 2000.
- 2 Whether the requirement for a verifying affidavit applies retrospectively to plaints filed before the amendment.
Ratio Decidendi
The court held that the plaint in question was filed in 1992, well before the 2000 amendment to the Civil Procedure Rules that introduced the requirement for a verifying affidavit. The law does not operate retrospectively unless expressly stated, and there was no such provision in the amendment. The court further clarified that the striking out of the summons to enter appearance and the order to file a fresh summons did not affect the validity of the original plaint, nor did it require the filing of a new plaint or a verifying affidavit. The plaint was validly filed under the law as it existed at the time, and the preliminary objection based on the absence of a verifying affidavit was...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs to be met by the applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE 458 OF 1992
THE REGISTERED TRUSTEES OF
MOMBASA PARISH ANJUMAN.........................PLAINTIFF
VERSUS
SUSHIN ABDULKARIM ALI .......................... DEFENDANT
***************************
RULING
Before court is a Preliminary Objection raised by Mr. Gathuku learned counsel for the Defendant/Applicant. Counsel argues that the plaint filed in this suit is not compliant with R.7(1)(2) of the Civil Procedure Rules which provides that:-
“(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff veryfing the correctness of the averments contained in the plaint”.
The Chamber Summons instituting this suit dated 26th June 1992 was filed in court on 26th June 1992. Thus this plaint was filed well before the amendment to the Civil Procedure Rules made in the year 2000 and which required that a plaint be accompanied by a verifying affidavit. Mr. Gathuku for the Applicant argues that following the striking out of the summons to enter appearance served on the Applicant on 3rd December 2008, the Respondent having been directed by the court to lodge a fresh summons to enter appearance ought to have put in a verifying affidavit to comply with O. VII r(1)(2). I have perused the court record and I do note that on 3rd December 2008 the proceedings indicate that my learned senior brother Hon. Justice Sergon did strike out the Respondent summons to enter appearance as defective. He further ordered that a fresh summons to enter appearance be filed. Mr. Gathuku submits before me that this summons to enter appearance marked the commencement of the case. With respect I totally disagree. The law is very clear on this point. O. IV r(1) of the Civil Procedure Rules provides that:-
“1. Every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed”.
A suit is commenced by the filing of a plaint and not by service of a summons to enter appearance. The orders made by Hon. Justice Sergon touched only on the summons to enter appearance which he ruled to have been defective. The learned Judge made no pronouncement on the plaint filed on 26/06/1992 and more to the point he did not rule that that plaint was defective in any manner whatsoever. All that the Respondent were directed to do was to serve a fresh summons. They were not ordered to file a fresh plaint.
Counsel for the Applicant relies on O. VII r(1) (2) of the Civil Procedure Rules as the basis for his preliminary objection. O. VII is an amendment to the original Rules made in 1992. The plaint in this suit was filed in 1992. At the time when the plaint was filed there was no legal requirement that it be accompanied by a verifying affidavit. Therefore at the time that plaint was filed it was done procedurally and in conformity with the law as it existed in 1992. It is trite law that new laws or Rules do not take effect retrospectively. Therefore an amendment to the Rules made in the year 2000 will not apply to plaint filed before that amendment came into force. In any event the plaint is a document totally distinct from the summons to enter appearance. A ruling that the summons was defective can have no bearing on the plaint. I find therefore that the plaint filed in 1992 was properly filed in accordance with the law in existence at that time. I find that the plaint filed in this matter is valid and accordingly I do dismiss the preliminary objection. Costs to be met by the Applicant.
Dated and Delivered at Mombasa this 15th day of October 2009.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Gathuku for Defendant
Mr. Maundu holding brief for Mr. Hamsa for Plaintiff
M. ODERO
JUDGE
15/10/2009