Jared Kirpotich Biwott & another v Jonathan Kibe [2017] KEELC 2033 (KLR)
The bottom line
#A Kenyan land court refused to throw out a late-served defence over a defective affidavit, showing courts prefer deciding cases on merits over procedural technicalities.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence and counterclaim should be struck out for failure to serve the plaintiff within the prescribed time
No. The court has discretion to permit service out of time; the defendant was ordered to serve within 14 days and the plaintiff granted corresponding leave to respond.
The court held that although the Civil Procedure Rules prescribe when pleadings may be served, they do not render subsequent service illegal. Following Munyao J in Priscilla Jeruto Kisoso, a party may apply for service out of time and the court must consider it on reasons given. Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act require courts to sustain pleadings and do substantive justice rather than strike them out on technical grounds, especially absent prejudice or miscarriage of justice.
Whether the verifying affidavit sworn by Jonathan Kibe, being uncommissioned, is defective and what consequence follows
The verifying affidavit is defective and was struck out, but the pleadings were not thereby nullified; the defendant was allowed to file a fresh verifying affidavit.
The court accepted that an affidavit must be sworn before a commissioner for oaths and the subject affidavit was not commissioned, so it was defective. However, following Microsoft Corporation v Mitsumi and Jamii Bora Bank v Ernst & Young, a defective verifying affidavit does not of itself render the plaint a nullity. Applying Ringera J's and Ochieng J's approach, the court struck out the affidavit but allowed a fresh compliant one to be filed, since no incurable prejudice or jurisdictional defect was shown.
Legal principles established
#- Courts should sustain rather than strike out pleadings on purely technical grounds, using striking-out provisions sparingly to do substantive justice
- Late service of pleadings is not illegal; a party may apply for service out of time and the court has discretion
- A defective verifying affidavit does not of itself render the plaint a nullity
Court orders
#- 1.The application is otherwise dismissed but the defective verifying affidavit sworn by Jonathan Kibe dated 19th December 2014 is struck out.
- 2.The defendant is allowed to file a fresh verifying affidavit.
- 3.The defendant do serve the plaintiff with his defence and counterclaim within fourteen (14) days from the date of the ruling.
- 4.The Plaintiff is granted corresponding leave of fourteen (14) days from the date of service to file a reply to defence and defence to counterclaim.
- 5.The plaintiff do serve the defendant with this order within the next 7 days.
- 6.Costs awarded to the plaintiff.
- Jurisdiction invoked
- Original jurisdiction; Article 159 2 (d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act invoked; application under the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Kirpotich Biwott & another v Jonathan Kibe [2017] KEELC 2033 (KLR)", Case Analysis (2017). Not stated in judgment (application by Notice of Motion dated 12th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2033/eng@2017-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.