Oriental Commercial Bank Limited v Shashikant Chandubhai Patel
The bottom line
#Kenya's Court of Appeal confirmed a lawsuit won't be thrown out just because its verifying affidavit was sworn before the plaint was drawn.
What this practically means
#Executive summary
#Key legal issues
#Whether a plaint accompanied by a verifying affidavit sworn before the plaint was drawn is competent under Order VII rule 1(2)
Yes. The mandatory requirement is that a verifying affidavit be filed together with the plaint; where an affidavit was in fact filed with the plaint, its antecedent swearing is a defect within the court's discretionary power to excuse, and Order XVIII rule 9 forbids rejection solely on the ground that it was sworn before the suit was filed.
The Gawo decision establishes that the verifying affidavit requirement is mandatory, but Gawo concerned a total absence of a verifying affidavit. Here an affidavit was filed with the plaint and specifically verified that the averments of that plaint were true. The 2000 amendment was not intended to remove the pre-existing discretion under Order XVIII rule 7 to excuse defects in the form of an affidavit, nor to displace Order XVIII rule 9. The later affidavit filed six months after was superfluous.
Whether the reasoning in Delphis Bank Ltd v Asudi Ltd (that a verifying affidavit cannot verify a plaint not in existence when sworn) should be followed
The Court doubted the legal reasoning in Delphis Bank because that decision made no reference to the saving provisions of Order XVIII of the Rules.
In Delphis Bank the verifying affidavit was also sworn before the plaint was drawn, and Ibrahim J held it invalid for that reason. This Court, however, noted that the High Court had discretion under Order XVIII rule 7 and was bound by Order XVIII rule 9 not to reject the affidavit solely because it predated the suit. Since the Delphis Bank reasoning ignored those provisions, the Court declined to follow it.
Legal principles established
#- The filing of a plaint together with a verifying affidavit is a mandatory requirement; a plaint accompanied by no verifying affidavit at all is incompetent and liable to be struck out.
- Where a verifying affidavit is filed together with the plaint but is defective (e.g. sworn before the plaint was drawn), the court retains a discretion under Order XVIII rule 7 to excuse the form of the affidavit, and under Order XVIII rule 9 (now Order 19 rule 8) an affidavit shall not be rejected solely because it was sworn before the filing of the suit.
- The court below properly exercised its discretion in admitting the defective but timeously-filed verifying affidavit, and the Court of Appeal will not interfere.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 264 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (not expressly recited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oriental Commercial Bank Limited v Shashikant Chandubhai Patel", Case Analysis (2011). Civil Appeal No. 221 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/119/eng@2011-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.