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Court of AppealPartially AllowedCivil Appeal 98 of 2003· [2007] KECA 369 (KLR)

Josephat Kipchirchir Sigilai v Gotab Sanik Entrprises Ltd & 4 others [2007] KECA 369 (KLR)

Court of Appeal of Kenya
30 March 2007
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireEOE. O. O'Kubasu
2,934 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a flawed verifying affidavit doesn't kill your lawsuit—it's a fixable mistake, and striking out a case is a last resort.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Eldoret against a ruling of Etyang J delivered on 20 March 2003 in HCCC No. 146 of 2002 striking out the appellant's plaint because the verifying affidavit accompanying it did not comply with Order VII rule 1(2) of the Civil Procedure Rules. The affidavit sworn by the appellant confirmed only that the plaint's averments accorded with his instructions to his advocates; it did not assert the truth of each averment. In a single judgment of the court delivered by Tunoi, Bosire and O'Kubasu JJA on 30 March 2007, the court examined the purpose of the verifying affidavit requirement introduced by Legal Notice No. 36 of 2000, holding that the affidavit is intended to make the plaintiff own every averment in the plaint, converting pleadings into evidence and pinning the plaintiff down to them. The court held that the appellant's affidavit fell short of the rule but that the omission was a mere irregularity, curable except in very clear cases, since striking out is a draconian and extreme measure reserved for the clearest of cases. The discretionary nature of the striking-out power under Order VII rule 1(3) required consideration of prejudice to the defendant, its compensability, and the merits of the claim. The court allowed the appeal, set aside the striking-out order, directed the appellant to file a compliant verifying affidavit within seven days, ordered the appellant to bear the respondents' thrown away costs of the preliminary objection, and ordered each party to bear its own costs of the appeal. The court also suggested that Order VII rule 1(2) raises fundamental issues and should be looked at afresh.

Key legal issues

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01

Purport of a verifying affidavit under Order VII rule 1(2)

Holding

The verifying affidavit is intended to make the plaintiff own every averment in the plaint, converting pleadings into evidence and pinning the plaintiff down to them; it must vouch to the truth of each averment, not merely to the correctness of instructions given to counsel.

Reasoning

The court traced the mischief behind the 2000 amendment, comparing modes of suit commencement (originating summons, judicial review, petitions) which are all supported by affidavits that are evidential in nature. A verifying affidavit makes the plaint's averments evidential and exposes a deponent to perjury sanctions, so it must assert the truth of the averments themselves.

p. 3
02

Effect of non-compliance with Order VII rule 1(2)

Holding

Non-compliance is a curable irregularity, not a nullity; the striking-out power is discretionary and should be exercised only in clear cases of abuse of process or frivolous, vexatious or scandalous claims.

Reasoning

Noting conflicting High Court decisions, the court preferred the purposive view that the rule targets evasive pleadings and multiplicity of suits. Weighing the appellant's non-frivolous claim and the absence of prejudice incapable of compensation, the court held the defect curable by filing a proper affidavit, subject to thrown away costs.

p. 4
03

Compliance of the appellant's affidavit

Holding

The appellant's affidavit fell short of Order VII rule 1(2) because he vouched only to the correctness of what he told his counsel, not to the truth of each averment.

Reasoning

The reproduced affidavit deponed that the plaintiff had read the averments and confirmed they were in accordance with his instructions. The court distinguished this from an assertion of the truth of every averment and answered the compliance question in the negative, though without invalidating the suit.

p. 4

Legal principles established

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  • A verifying affidavit under Order VII rule 1(2) must vouch to the truth of every averment in the plaint; an affidavit merely confirming that the plaint accords with the plaintiff's instructions to counsel does not comply.
  • Failure to file a compliant verifying affidavit under Order VII rule 1(2) is a mere irregularity, curable in all but very clear cases, and does not render the plaint a nullity.
  • The power to strike out a plaint for non-compliance with Order VII rule 1(2) is discretionary and requires the court to consider prejudice to the defendant, whether it can be compensated, and the merit of the plaintiff's case.
  • Striking out a suit is a draconian and extreme measure reserved for the clearest of cases.

Court orders

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  1. 1.Appeal allowed
  2. 2.Superior court order dated 20th March 2003 striking out the appellant's plaint dated 1st August 2002 set aside
  3. 3.Appellant to swear a verifying affidavit complying with Order VII rule 1(2) of the Civil Procedure Rules and file it in the Superior Court within seven days of the date of the judgment
  4. 4.Appellant to bear the respondents' thrown away costs of the preliminary objection before the superior court
  5. 5.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder VII rule 1(1)(e), rule 1(2), rule 1(3)
  • Civil Procedure RulesOrder I rule 1
  • Civil Procedure RulesOrder XXXVI
  • Civil Procedure RulesOrder LIII rule 1(2)
  • Civil Procedure RulesOrder VI rule 13(1)
  • Civil Procedure Act
  • Penal Codesection 114
  • Oaths and Statutory Declarations Act
  • Matrimonial Causes Act
  • National Assembly And Presidential Elections Act

Cases cited (3)

  • Microsoft Corporation v. Mitsumi Computer Garage Ltd & Another
    Milimani Commercial Courts (Nairobi) No. 810 of 2001
  • Galeb Gulam & Another v. Cyrus Shakhalaga Kwah Jirongo
    NAI HCCC No. 393 of 2003
  • Harpreet Singh Lotay vs. Starlit Insurance Brokers Ltd
    Milimani Commercial Courts Civil Case No. 1072 of 2000
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 146 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction from the High Court ruling (statutory appellate jurisdiction, no specific constitutional provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Josephat Kipchirchir Sigilai v Gotab Sanik Entrprises Ltd & 4 others [2007] KECA 369 (KLR)", Case Analysis (2007). Civil Appeal 98 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/369/eng@2007-03-30

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