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Court of AppealDismissedCivil Appeal No. 324 of 2005· [2014] KECA 460 (KLR)

Kenya Oil Company Limited v Jayantilal Dharamshi Gosrani [2014] KECA 460 (KLR)

Court of Appeal of Kenya
11 July 2014
EGE. M. GithinjiDavid Kenani MaragaD. K. MaragaMohamed Abdulahi WarsameM. Warsame
1,977 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 confirmed that a defective verifying affidavit won't sink a lawsuit, and litigants can't revive dormant appeals after full trial.

What this practically means

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Executive summary

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This was an appeal by Kenya Oil Company Limited against a ruling of the High Court (Ransley, J.) of 25th October 2005, in which the learned Judge declined to strike out the respondent's plaint despite finding that the verifying affidavit was not duly attested, and instead gave the respondent leave to file a proper verifying affidavit within seven days. The appellant argued that the Judge had no discretion to refuse to strike out the plaint, or alternatively that the discretion was exercised on wrong principles given that a 'false document' had allegedly been filed. The Court of Appeal held that under Order VII rule 1(3) of the Civil Procedure Rules the power to strike out a plaint for want of a compliant verifying affidavit is permissive ('the court may'), not mandatory, following Research International East Africa Ltd v Arisi and applying the D.T. Dobie principle that striking out should be used sparingly — with even greater force where the defect does not go to the root of the claim. The failure to attest the affidavit before a Commissioner for Oaths was a curable procedural error. Independently, the Court held the appeal was an abuse of process: the suit had proceeded to full trial and judgment, a separate appeal (Civil Appeal No. 328 of 2010) was pending, the appellant had not prosecuted this 2005 appeal nor sought a stay. Allowing it would circumvent the merits and render the pending appeal futile. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Discretionary nature of striking out a plaint for a defective verifying affidavit

Holding

The court had discretion to allow the plaintiff to file a proper verifying affidavit rather than strike out the plaint; the learned Judge exercised that discretion judicially.

Reasoning

Order VII rule 1(3) uses the permissive phrase 'the court may', so striking out is not mandatory. As held in Research International (Arisi), the superior court may make other appropriate orders such as giving the plaintiff an opportunity to comply. The defect — a verifying affidavit not duly attested — was procedural and curable at any time before hearing. The discretion to strike out pleadings should be used sparingly per D.T. Dobie, and with even more force here because the omission does not go to the root of the claim.

p. 3
02

Abuse of process by prosecuting a dormant interlocutory appeal after final judgment

Holding

The appeal was an abuse of the court process and was dismissed; allowing it would circumvent the determination on the merits and render the pending appeal against the trial judgment futile.

Reasoning

The suit proceeded to full hearing and judgment was entered for the respondent, against which the appellant filed a separate appeal (Civil Appeal No. 328 of 2010). The present interlocutory appeal lay dormant from 2005 without prosecution and without any stay being sought. Permitting it would be a direct assault on the High Court decision and a collateral attack on the administration of justice, and would unjustly jeopardise the concluded trial and the pending appeal.

p. 3

Legal principles established

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  • The power to strike out a plaint for want of a verifying affidavit under Order VII rule 1(3) (now Order 4 rule 1(6)) is discretionary and permissive, not mandatory, so a court may make other appropriate orders instead of striking out.
  • A failure to file a compliant verifying affidavit is a procedural error not going to the root of the claim, which the court may correct at any time before the suit is heard; the discretion to strike out should be exercised sparingly.
  • A party who participates in the full trial without obtaining a stay of an interlocutory ruling cannot later prosecute a dormant interlocutory appeal to overturn the trial outcome; doing so is an abuse of the court process and a collateral attack on the administration of justice.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder VII rules 1(2) and 1(3)
  • Civil Procedure RulesOrder 4 rule 1(2), rule 1(6)

Cases cited (2)

  • Research International East Africa Limited v. Arisi and Others
    [2007] (1) EA 248
  • D.T. Dobie & Company (K) Ltd. v. Muchina
    [1982] KLR 1
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 39 of 2005
Jurisdiction invoked
Appeal from the High Court under the court's appellate jurisdiction over interlocutory decisions (leave to appeal granted by the learned Judge); no specific constitutional/statutory provision is quoted in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Kenya Oil Company Limited v Jayantilal Dharamshi Gosrani [2014] KECA 460 (KLR)", Case Analysis (2014). Civil Appeal No. 324 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/460/eng@2014-07-11

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