[2007] KEHC 3225 (KLR)
The court found that the verifying affidavit accompanying the amended plaint was incurably defective because it was signed by two persons, and there was no written consent from the 2nd plaintiff authorizing the 1st plaintiff to swear the affidavit on his behalf. The court further noted that the signature purporting...
Source-derived case information.
- Citation
- [2007] KEHC 3225 (KLR)
- Parties
- Plaintiff: Stanley Mathaara Muchui; Plaintiff: Peter Kinyuri Muriu; Defendant: Makomboki Tea Factory and Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 666 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- amended plaint struck out with costs
- Judges
- KH Rawal
- Legal Topics
- Verifying Affidavit, Amended Plaint, Striking Out Pleadings, Order Vii Rule 2, Affidavit Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Mathaara Muchui
Plaintiff
Peter Kinyuri Muriu
Plaintiff
Makomboki Tea Factory and Others
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the verifying affidavit accompanying the amended plaint is valid in the absence of written consent from the co-plaintiff.
- 2 Whether the defects in the verifying affidavit are curable or amount to a fatal irregularity justifying striking out the amended plaint.
Ratio Decidendi
The court found that the verifying affidavit accompanying the amended plaint was incurably defective because it was signed by two persons, and there was no written consent from the 2nd plaintiff authorizing the 1st plaintiff to swear the affidavit on his behalf. The court further noted that the signature purporting to be that of the 2nd plaintiff was inconsistent with his known signatures on other documents. The defects were not merely technical or formal but went to the substance of the requirement under Order VII Rule 2 of the Civil Procedure Rules. Consequently, the court held that the amended plaint could not stand and must be struck out with costs.
Court Disposition
amended plaint struck out with costs
Orders
- The amended plaint dated 30th January, 2003 is struck out with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 666 OF 2002
STANLEY MATHAARA MUCHUI & ANOTHER……PLAINTIFF
VERSUS
MAKOMBOKI TEA FACTORY AND OTHERS…..DEFENDANT
RULING
Before me is the Notice of Preliminary Objection dated 20th May, 2002. In my view, the Learned Counsel for the Defendant Mr. Ngomo, in effect stressed ground No.5 of the Notice of Preliminary Objection which attacks the validity of verifying affidavit to the Amended Plaint dated 30th January, 2003.
The verifying affidavit of the 1st Plaintiff namely Stanley Mathaara Muchui is sworn on 4th February, 2003. It is signed by him and an unnamed person with his Identity card number shown against the signature.
Underneath the said signature it is typed in different font i.e. “Authorisation.”
There are two Plaintiffs in this suit and the affidavit of the 1st Plaintiff avers that he was swearing the affidavit on behalf of his co-plaintiff whose name is Peter Kinyuri Muriu.
The said 2nd Plaintiff has not filed any written consent for the 1st plaintiff to swear an affidavit on his behalf. Order VII Rule (2) of Civil Procedure Rules stipulates.
“(2) The plaint shall be accompanied by an affidavit sworn by the Plaintiff verifying the correctness of the averments contained in the Plaint.”
As per Order VII sub-rule (3), the court, on application, may strike out any plaint which does not comply with sub-rule (2) of the said order, which is already quoted hereinbefore.
I was urged by the Learned Counsel for the plaintiffs to use my inherent power under Section 3A of Civil Procedure Act and also to consider to receive the affidavit under order XVIII Rule (7) of Civil Procedure Rule.
The verifying affidavit sworn on 4th February 2003 accompanying the amended Plaint filed on 5th February 2003 has serious irregularities.
First of all it is signed by two persons although it is supposed to have been signed by the 1st Plaintiff Stanley Muthaara Muchui. Secondly there is no written consent by the 2nd Plaintiff to the swearing of the verifying affidavit by the 1st Plaintiff.
Even if I am inclined to accept the signature above the words “Authorization” is a consent by the 2nd plaintiff, I do note that the signatures of Peter Kinyuru Muriu the 2nd Plaintiff appearing on verifying affidavit appended to the Original Plaint and on his affidavit in support to the Chamber summons dated 18th April, 2002 are, on naked eyes, totally different to the one signed over the words Authorisation.
The Learned Counsel for the Plaintiffs Mrs. Kimiti candidly agreed to the said position.
The verifying affidavit accompanying the amended plaint of 30th January, 2003 is thus incurably defective and the defects are not technical nature and is not only a formality.
I thus strike out the amended plaint dated 30th January, 2003 with costs.
Dated and signed at Nairobi this 28th day of February, 2007.
K.H. RAWAL
JUDGE
28. 2.07