Szaredo Investiments Limited v Chief Land Registrar & 2 others [2018] KEELC 4008 (KLR)
The bottom line
#A Kenyan court refused to immediately strike out a land lawsuit over a defective verifying affidavit, giving the plaintiff 30 days to fix it.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex an authority under seal to the verifying affidavit warrants striking out the plaint
No authority under seal was annexed, so Order 4 rule 1(4) was breached; but striking out is discretionary and should not be the first resort. The plaintiff was given 30 days to file a compliant verifying affidavit, failing which the suit stands struck out with costs.
The court found the deponent, Peter Szapary, swore the verifying affidavit without exhibiting authority under seal of the plaintiff company, breaching Order 4 rule 1(4). However, the consequence provision (rule 1(6)) is discretionary. Guided by Article 159 on procedural technicalities and D.T. Dobie, the court held that striking out is draconian and should follow only after failure to remedy the default by amendment.
Whether Order 4 rule 1(4) is mandatory in its entirety
The requirement to exhibit authority under seal is mandatory, but the consequences of noncompliance under rule 1(6) are not; the court retains discretion.
The court dissected rule 1(4) and 1(6): the obligation to exhibit an authority under seal is couched in mandatory terms, but rule 1(6) uses permissive language ('may'), giving the court discretion whether to strike out. That discretion must be exercised bearing in mind Article 159 of the Constitution, which requires justice to be administered without undue regard to procedural technicalities.
Legal principles established
#- Where the plaintiff is a corporation, the verifying affidavit must be sworn by an officer duly authorised under the seal of the company.
- The consequence of noncompliance with Order 4 rule 1(4) is discretionary, not automatic; the court should give a litigant a chance to comply before striking out, having regard to Article 159 of the Constitution.
Court orders
#- 1.The plaintiff shall within 30 (thirty) days from the date of delivery of this ruling, file and serve a fresh verifying affidavit which complies with Order 4 rule 1(4) of the Civil Procedure Rules, 2010.
- 2.In default of compliance with (a) above, the suit shall stand struck out with costs to the defendants.
- 3.Costs of this application are awarded to the defendants.
- Jurisdiction invoked
- Original civil suit under the Civil Procedure Rules, 2010 (Order 4 rule 1(4) and 1(6)); Article 159 of the Constitution of Kenya, 2010 invoked on procedural technicalities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Szaredo Investiments Limited v Chief Land Registrar & 2 others [2018] KEELC 4008 (KLR)", Case Analysis (2018). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4008/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.