Kayam Chatur v Barclays Bank of Kenya Limited & 2 others [2014] KECA 511 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a man's lawsuit, ruling that one plaintiff's paperwork problem cannot kill another plaintiff's valid case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the failure of the 2nd plaintiff to file a verifying affidavit justified striking out the entire suit including the 1st plaintiff's claim, after the 2nd plaintiff had withdrawn his suit
- 2.Whether the absence of the place of swearing in the jurat of the supporting affidavit rendered the chamber summons application fatally defective
- 3.Whether procedural defects of form, cured or without prejudice, warranted striking out a competent suit notwithstanding the overriding objective
Key legal issues
#Effect of absence of a verifying affidavit by one of two plaintiffs
The 2nd plaintiff's withdrawal of his suit before the inter partes hearing removed any defect attributable to him; the 1st plaintiff's suit was competent and could not be struck out.
The plaint was accompanied by a valid verifying affidavit sworn by Kayam Chatur. The 2nd plaintiff had no verifying affidavit, but he withdrew his suit by formal notice on 5th October 2009, before the inter partes hearing. The learned judge nonetheless struck out the entire suit. The court held there was a competent suit by the appellant which he was entitled to maintain, and that striking it out was clearly in error.
Consequence of a defective affidavit supporting an application
Even if the supporting affidavit was incurably defective for not stating the place of swearing, the consequence would only be dismissal of the application, not striking out the whole suit.
The judge held the affidavit offended the Oaths and Statutory Declarations Act because the place of swearing was not stated, and struck out the entire suit on that basis. The Court of Appeal held that this conflated the fate of the interlocutory application with that of the substantive suit; a defective supporting affidavit, at worst, doomed the application only.
Legal principles established
#- A suit properly before the court by a plaintiff with a valid verifying affidavit cannot be struck out merely because a co-plaintiff without a verifying affidavit has withdrawn his own claim.
- A defect in an affidavit in support of an application, even if incurable, could at most lead to dismissal of that application and does not affect the suit itself.
- On a first appeal, the Court of Appeal is duty bound to reconsider and re-evaluate the whole matter and reach its own conclusions.
Court orders
#- 1.The Ruling of the learned judge (Mwera, J) dated 18th November 2009 is set aside
- 2.The suit by the appellant against the respondents is reinstated and shall be heard in the normal way
- 3.The appeal succeeds with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- KSM HCC No. 148 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 196 of 2010)
Quotable passages
#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 effect of our findings is that the Ruling of the learned judge cannot stand and we hereby set it aside. The suit by the appellant against the respondents is hereby reinstated and shall be heard in the normal way. The appeal succeeds with costs to the appellant.
The action of the learned judge who struck out the suit which was properly before him and unaffected by the actions of the 2 nd plaintiff who had in any event withdrawn his suit was clearly in error.
Being a first appeal we are duty bound to reconsider the whole matter and re-evaluate the same to reach our own conclusions
Issues in the judgment
#The judgment states the notice of preliminary objection and withdrawal were filed on 5th October, 2009 but elsewhere refers to the same day as '5th October, 2005', an apparent typographical error.
The 2nd respondent is named 'Joseph M. Gionyo' in the cause title but 'Joseph M. Gikonyo' in the body of the judgment - an inconsistency in the spelling of the name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayam Chatur v Barclays Bank of Kenya Limited & 2 others [2014] KECA 511 (KLR)", Case Analysis (2014). Civil Appeal No. 196 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/511/eng@2014-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.