Flystar Limited v Delphis Bank Limited [2015] KECA 747 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a defective verifying affidavit doesn't kill a lawsuit, confirming judges can fix procedural errors rather than striking out entire cases.
What this practically means
#Executive summary
#Key legal issues
#Power of the court to act suo motu in striking out a non-compliant verifying affidavit
Order VII rule 1(3) expressly empowers the court, of its own motion, to strike out a non-compliant verifying affidavit and the judge did not exceed his jurisdiction in doing so and in allowing a compliant affidavit to be filed.
The appellant argued that the judge determined issues not raised by any application. The court held that Order VII rule 1(3) permits the court to act of its own motion or on the defendant's application. The judge struck out the defective affidavit but, exercising discretion, declined to strike out the plaint, instead ordering a compliant affidavit within seven days. This fell squarely within the rule and did not exceed jurisdiction.
Consequences of a verifying affidavit commissioned by an advocate without a valid practising certificate
Such a verifying affidavit is a nullity, but the defect does not automatically doom the plaint; the court retains discretion to save the suit by striking out only the affidavit and requiring a compliant one.
Following Kenya Commercial Bank v Kenya Hotels, the trial judge found the affidavit was commissioned by an advocate without a practising certificate and was therefore null and void. However, the Court of Appeal endorsed the principle that rules of procedure are handmaidens of justice: deviations not going to jurisdiction or causing fundamental prejudice should not nullify proceedings, and a suit showing even a semblance of a cause of action curable by amendment should proceed.
Interference with judicial discretion on costs
The trial judge's order that there be no order as to costs was a discretionary exercise with some basis (the appellant's belated resort to court when threatened with execution) and would not be disturbed.
Section 27 of the Civil Procedure Act makes costs discretionary and provides that costs follow the event unless the court for good reason otherwise orders. Relying on Devram Nanji Dattani v Haridas Kalidas Dawda and Supermarine Handling Services Ltd v Kenya Revenue Authority, the court held it would not interfere where grounds exist for the judge's discretion. The judge's discretionary power here was properly exercised.
Duty of a first appellate court
A first appellate court is entitled to reconsider the evidence, evaluate it and draw its own conclusions while making allowance for not having seen or heard the witnesses.
In framing its approach, the court cited Selle v Associated Motor Boat Company Ltd, Kenya Ports Authority v Kuston (Kenya) Ltd and Pil Kenya Ltd v Oppong for the standard of review on a first appeal. This framed the standard of review applied to the findings under appeal but was not itself decisive of the outcome.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion on striking out a plaint or on costs unless the judge misdirected himself, exercised discretion on wrong principles, or the decision was clearly wrong resulting in injustice.
- Where a verifying affidavit is defective but the plaint shows a cause of action, the court may strike out only the affidavit and allow the filing of a compliant one; striking out the plaint is a draconian measure of last resort.
- Procedural lapses that do not go to jurisdiction or cause fundamental prejudice should not nullify proceedings.
- An appellate court will not interfere with a trial judge's discretion on costs where there is some ground supporting its exercise; it may interfere where no reasons are given and the order is wrong.
Court orders
#- 1.Appeal dismissed
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 447 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act / Appellate jurisdiction (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kirira v Deputy Registrar High Court Nyeri & 4 others (Civil Appeal (Application) 128 of 2020) [2025] KECA 953 (KLR)[2025] KECA 953 (KLR)11 Apr 2025
- Arendse & 182 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 3381 (KLR)[2023] KEELRC 3381 (KLR)7 Dec 2023followed
- Pius Njogu Kathuri v Joseph Kiragu Muthura & 2 Others[2017] KEHC 864 (KLR)13 Dec 2017applied
- JAMII BORA BANK LIMITED v ERNST & YOUNG LLP[2017] KEHC 9874 (KLR)1 Mar 2017followed
- Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2015] KECA 572 (KLR)[2015] KECA 572 (KLR)3 Jul 2015applied
Cite this brief
#Cite this brief
Caselaw, "Flystar Limited v Delphis Bank Limited [2015] KECA 747 (KLR)", Case Analysis (2015). Civil Appeal No. 58 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/747/eng@2015-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.