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Court of AppealDismissedCivil Application No. Nai 345 of 2000

Joshua Gawo & others v Nairobi City Council & others [2001] KECA 251 (KLR)

Court of Appeal
9 March 2001
Philip Kiptoo TunoiP. K. TunoiASA. B. ShahEOE. O. O'Kubasu
1,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to protect Kariobangi churches from eviction because their lawsuit was filed without a required sworn statement confirming its contents.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi, delivered by Tunoi, Shah and O'Kubasu JJ.A, disposed of a notice of motion by Bishop Joshua Gawo and others, churches occupying unsurveyed plots at Kariobangi, brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicants sought restraint against eviction from, or interference with, their church premises pending an intended appeal against the ruling of Rawal J of 5 October 2000 in HCCC No. 1166 of 2000, striking out their plaint because it was not accompanied by the verifying affidavit required by Order VII of the Civil Procedure Rules, a requirement recently introduced by Legal Notice No. 36 of 2000. Mr Wamalwa argued that the affidavit filed in support of the applicants' chamber summons served the same purpose and that damages would be inadequate for churches established for the public good. Mrs Kamande and Mr Ngaah, for the respondents, maintained that accompaniment of the plaint by a verifying affidavit was mandatory and that the intended appeal raised no arguable point. The Court agreed: the rule's wording left no room for the applicants' interpretation; the chamber summons affidavit could not cure the defect; and the intended appeal raised no arguable point warranting relief under Rule 5(2)(b). It added that, the plaint having been struck out, no suit remained pending before the superior court. The motion was dismissed with costs to the respondents, and the High Court's ruling was left undisturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the affidavit filed in support of the chamber summons could serve the purpose of, or cure the absence of, the verifying affidavit required to accompany the plaint under Order VII of the Civil Procedure Rules.
  2. 2.Whether the intended appeal from the ruling striking out the plaint raises an arguable point warranting an order under Rule 5(2)(b) of the Court of Appeal Rules.
  3. 3.Whether any suit remains pending before the superior court following the striking out of the plaint.

Key legal issues

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01

Whether the absence of a verifying affidavit accompanying the plaint is cured by the affidavit filed in support of the chamber summons.

Holding

No. Order VII requires the plaint itself to be accompanied by a verifying affidavit sworn by the plaintiff; the chamber summons affidavit cannot serve that purpose and the defect is fatal to the plaint.

Reasoning

The sub-rule, recently enacted by Legal Notice No. 36 of 2000, is clearly worded and specifically requires the affidavit to accompany the plaint. Rawal J had held that paragraph 12 of the chamber summons affidavit did not cure the defect. Counsel for the applicants argued that the chamber summons affidavit served the same purpose, but the Court held that the rule's plain wording admits no such interpretation, endorsing the strict, mandatory reading adopted below.

p. 2
02

Whether the intended appeal raises an arguable point warranting an order under Rule 5(2)(b) of the Court of Appeal Rules.

Holding

No. Because the verifying-affidavit point is resolved against the applicants by the clear wording of the rule, the intended appeal raises no arguable point.

Reasoning

Relief under Rule 5(2)(b) presupposes an arguable appeal. With the only substantive contention foreclosed by the plain language of Order VII, the threshold was not met. The Court declined to examine the other issues raised, found the respondents' submissions unanswerable, and observed that no suit remained pending before the superior court in any event, leaving no basis for interim restraint orders.

p. 2
03

The status of the suit before the superior court after the plaint was struck out.

Holding

There is no suit pending before the superior court, so there is nothing left to preserve pending the intended appeal.

Reasoning

Having struck out the plaint on a technical ground, albeit without costs, Rawal J's order left the applicants without a pending action. The Court of Appeal pointed this out in declining to consider other issues, underscoring that interim restraint orders pending an intended appeal would operate in respect of a suit that no longer exists before the superior court.

p. 2

Legal principles established

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  • A plaint must itself be accompanied by an affidavit sworn by the plaintiff verifying the correctness of its averments; an affidavit filed in support of another application, such as a chamber summons, cannot cure the absence of that verifying affidavit.
  • The Court of Appeal will not grant orders under Rule 5(2)(b) pending appeal unless the intended appeal raises an arguable point.
  • Once a plaint is struck out, there is no suit pending before the superior court capable of being preserved by pending-appeal orders.

Court orders

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  1. 1.The notice of motion under Rule 5(2)(b) is dismissed as unmeritorious.
  2. 2.Costs of the application awarded to the respondents.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
AS
majority
EO
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1166 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (the 'Rules of this Court') - the Court's discretionary power to grant orders pending an intended appeal

Relief refused

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Restraint against the respondents evicting the applicants or interfering with their possession, use and enjoyment of the Kariobangi church premises pending the intended appeal

The intended appeal raised no arguable point warranting an order under Rule 5(2)(b), the verifying-affidavit requirement being clear and mandatory

p. 2

Costs of the application to be made costs in the intended appeal

The application was instead dismissed with costs to the respondents

p. 3

Costs

The application is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that this application is found to be unmeritorious and the same is dismissed with costs to the respondents.
p. 3Final orders - dismissal of the Rule 5(2)(b) application with costs to the respondents
In our view, the rule is so clear as to leave no room for such interpretation.
p. 2Mandatory nature of the verifying affidavit required to accompany a plaint under Order VII
we find that the intended appeal does not raise an arguable point that would warrant an order of this Court under Rule 5(2) (b) of this Court's Rules.
p. 2Arguability threshold for relief under Rule 5(2)(b)
In the premises, I order that the plaint be struck out. However as the plaint is struck out on technical ground I shall not order costs
p. 2The decision under review - Rawal J's order striking out the plaint without costs
except to point out that as of now, there is no suit pending before the superior court.
p. 2Effect of striking out a plaint on the pendency of the suit

Issues in the judgment

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minor

The judgment cites the verifying-affidavit requirement under two different rule numbers: the objection in the superior court is said to be based on Order VII Rule 3(2), but the Court later analyses the same requirement as Order VII rule 1(2).

minor

The text of counsel's submission is corrupted/garbled at the point where Mr Wamalwa's argument ends and Mrs Kamande's response begins, leaving the passage partly illegible.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Gawo & others v Nairobi City Council & others [2001] KECA 251 (KLR)", Case Analysis (2001). Civil Application No. Nai 345 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/251/eng@2001-03-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.