[2023] KEELC 17051 (KLR)
The court held that the verifying affidavit is a procedural document intended to verify the correctness of the pleadings, specifically the defence and counterclaim. Its omission was not fatal to the substance of the pleadings, and the court found merit in the defendants' application to file it out of time. The judge...
Source-derived case information.
- Citation
- [2023] KEELC 17051 (KLR)
- Parties
- Plaintiff: Jane Wanjiru Thiongo (Suing as Administrator of the Estate of Dedan Thiongo Kingangi (Deceased)); Defendant: Peter Ndungu Gicheru; Defendant: Serah N Gicheru; Defendant: Josheph Mungai Gicheru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1187 of 2015
- Procedural Posture
- Environment and Land Case / Ruling on Application for Leave to File Verifying Affidavit After Close of Cases
- Outcome
- Application allowed; leave granted to file verifying affidavit; costs awarded to plaintiff.
- Judges
- LN Mbugua
- Legal Topics
- Verifying Affidavit, Late Filing of Documents, Counterclaim Procedure, Order 7 Rule 5, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wanjiru Thiongo (Suing as Administrator of the Estate of Dedan Thiongo Kingangi (Deceased))
Plaintiff
Peter Ndungu Gicheru
Defendant
Serah N Gicheru
Defendant
Josheph Mungai Gicheru
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Leave to File Verifying Affidavit After Close of Cases
Legal Issues
- 1 Whether the defendants should be granted leave to file a verifying affidavit to the statement of defence and counterclaim after the close of cases.
- 2 Whether the late filing of the verifying affidavit prejudices the plaintiff.
Ratio Decidendi
The court held that the verifying affidavit is a procedural document intended to verify the correctness of the pleadings, specifically the defence and counterclaim. Its omission was not fatal to the substance of the pleadings, and the court found merit in the defendants' application to file it out of time. The judge reasoned that the plaintiff would not suffer substantive prejudice, as she would be at liberty to file further submissions addressing the contents of the verifying affidavit. The court exercised its discretion to allow the late filing in the interests of justice and procedural fairness, awarding costs of the application to the plaintiff.
Court Disposition
Application allowed; leave granted to file verifying affidavit; costs awarded to plaintiff.
Orders
- The defendants shall file and serve the verifying affidavit within 7 days.
- The plaintiff is at liberty to file further submissions addressing the verifying affidavit.
Full Case Text
Judgment text and source record
23 paragraphs
Thiongo (Suing as administrator of the Estate of Dedan Thiongo Kingangi (Deceased) v Gicheru & 2 others (Environment & Land Case 1187 of 2015) [2023] KEELC 17051 (KLR) (20 April 2023) (Ruling)
Neutral citation: [2023] KEELC 17051 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 1187 of 2015
LN Mbugua, J
April 20, 2023
Between
Jane Wanjiru Thiongo (Suing as Administrator of the Estate of Dedan Thiongo Kingangi (Deceased)
Plaintiff
and
Peter Ndungu Gicheru
1st Defendant
Serah N Gicheru
2nd Defendant
Josheph Mungai Gicheru
3rd Defendant
Ruling
1. Both the plaintiff and the defendant have closed their cases and the matter was scheduled for mention on February 1, 2023 to confirm the filing of submissions. The defendants filed an application dated January 20, 2023 seeking orders that they be given leave to file a verifying affidavit to the statement of defence and the counterclaim. They contend that the aforementioned document was left out by mistake.
2. The plaintiff has opposed the application vide her replying affidavit dated January 26, 2023 contending that it is unfair to the plaintiff for such a crucial document to be introduced at this stage of the trial when both parties have closed their case, and that she will not have a chance to cross examine the applicants on the contents of the said document.
3. I have considered the rival arguments. I find that the substantive pleading is the defence and counterclaim in so far as the application is concerned. In terms of the provisions of Order 7 rule 5 of the Civil Procedure Rules, the import of the document in question is simply to verify the correctness of the averments contained in the pleading.
4. I find that the application is merited. The verifying affidavit is to be filed and served within 7 days, but the respondent is at liberty to file further submissions thereafter touching on the said document. Cost of the application are awarded to the plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF APRIL, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/S Maina for PlaintiffsObati holding brief for Oyugi for DefendantsCourt assistant: Joan