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ELCOtherELC Case No. 828 of 2013· [2015] KEELC 310 (KLR)

Tapasiya Bhavan Ltd v Samuel Karanja Kariuki & 2 others [2015] KEELC 310 (KLR)

Environment and Land Court
27 July 2015
BOB.N. Olao
1,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A missing company seal made a Kenyan court strike out a verifying affidavit, but the land suit survived because striking out suits is discretionary, not mandatory.

What this practically means

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Executive summary

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This is an interlocutory order of the Environment and Land Court at Kerugoya arising from the plaintiff's Notice of Motion dated 17th December 2013 seeking a temporary injunction to restrain the defendants from dealing with land parcel Thika Municipality Block 29/270 pending hearing of the suit. The court's attention was drawn to the fact that the verifying affidavit filed with the plaint was sworn by Benson Irungu Mwangi, an employee of the plaintiff company, whereas Order 4 Rule 1(4) of the Civil Procedure Rules requires a corporate plaintiff's verifying affidavit to be sworn by an officer duly authorized under the seal of the company. Following Ringera J in Microsoft Corporation v Mitsumi Computer Garage Ltd, the court held that the definition of 'officer' in Section 2 of the Companies Act is inclusive rather than exhaustive, and that an employee holding a position of trust and authority, such as the deponent who was the company's authorized caretaker, qualifies as an officer. However, the affidavit bore no company seal and was therefore defective. Relying on the discretionary word 'may' in Order 4 Rule 6, the court declined to dismiss the application, struck out the defective verifying affidavit, and directed the plaintiff to file a proper affidavit bearing its seal within 15 days, after which the ruling on the injunction motion would be delivered. The plaintiff was ordered to meet the defendants' costs.

Key legal issues

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01

Whether an employee may qualify as an 'officer of the company' for purposes of swearing a verifying affidavit

Holding

Yes, where the employee holds a position of trust and authority and demonstrates authorization within the organization, since the statutory definition is inclusive

Reasoning

The Civil Procedure Act and Rules do not define 'officer of the company'. Section 2 of the Companies Act defines it inclusively, not exhaustively. Following Ringera J in Microsoft Corporation v Mitsumi, the ordinary meaning is a person holding a position of authority or trust. The deponent, confirmed by the company as caretaker authorized to protect its property, was held to be an officer.

p. 2
02

Effect of non-compliance with the seal requirement in Order 4 Rule 1(4)

Holding

The affidavit is defective but the suit need not be dismissed; the court has discretion under Order 4 Rule 6 to strike out the defective affidavit and require a proper one

Reasoning

Order 4 Rule 1(4) requires the verifying affidavit of a corporate plaintiff to be sworn under the company's seal; the deponent's affidavit bore no seal and was therefore defective. Under Order 4 Rule 6 the court 'may' strike out - the discretion is not mandatory. The interests of justice favour striking out the defective affidavit and directing filing of a proper one rather than dismissing the suit.

p. 2

Legal principles established

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  • The definition of 'officer' in Section 2 of the Companies Act is inclusive rather than exhaustive, so an employee holding a position of trust and authority can be an officer of the company and may swear a verifying affidavit if authorized within the organization
  • Where a company is the plaintiff, the verifying affidavit must be sworn by an officer duly authorized under the seal of the company; an affidavit without the company's seal is defective

Court orders

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  1. 1.The verifying affidavit of Benson Irungu Mwangi filed with the plaint is declared defective and is struck out
  2. 2.A proper affidavit bearing the plaintiff's seal be filed within 15 days of the giving of the order
  3. 3.Thereafter the Court will deliver its ruling on the Notice of Motion dated 17th December 2013
  4. 4.The plaintiff/applicant to meet the defendants/respondents' costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(4)
  • Civil Procedure RulesOrder 4 Rule 6
  • Companies ActSection 2
  • Civil Procedure Actnot specified

Cases cited (1)

  • Microsoft Corporation v Mitsumi Computer Garage Ltd & Another
    2001 K.L.R 470
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (suit over Thika Municipality Block 29/270); interlocutory application under the Civil Procedure Rules

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, "Tapasiya Bhavan Ltd v Samuel Karanja Kariuki & 2 others [2015] KEELC 310 (KLR)", Case Analysis (2015). ELC Case No. 828 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/310/eng@2015-07-27

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