Priska Onyango Ojuang’ & another v Henry Ojwang Nyabende [2018] KEELC 4500 (KLR)
The bottom line
#A Kenyan court struck out a landowner's counterclaim because he filed it without a verifying affidavit and then waited over three years to fix the mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether a counterclaim filed without a verifying affidavit is a proper suit
No - it contravenes Order 7 Rule 5(a) read with Order 4 Rule 1(2) of the Civil Procedure Rules and is improperly before the court, liable to be struck out.
The court noted the Plaintiffs' plaint was accompanied by a verifying affidavit, but the Defendant's defence and counterclaim had none, contrary to Order 7 Rule 5(a) which requires an affidavit under Order 4 Rule 1(2) where there is a counterclaim. The Defendant stands as plaintiff in the counterclaim and bears the same obligation at filing. Non-compliance renders the counterclaim defective and liable to striking out.
Whether a verifying affidavit can be filed long after the counterclaim
The court declined to exercise its discretion in favour of the Defendant due to inordinate delay and prejudice to the Plaintiffs.
The application was filed only days after the Plaintiffs' submissions seeking striking out of the counterclaim, suggesting an attempt to circumvent that move. The Plaintiffs had closed their case by filing submissions on 23rd January 2015; allowing late filing at that stage would prejudice them and delay finalisation of the suit.
Legal principles established
#- A defendant filing a counterclaim must file a verifying affidavit at the time the counterclaim is filed, in the same way a plaintiff must accompany a plaint with a verifying affidavit.
- A claim commenced through a plaint or counterclaim without an accompanying verifying affidavit is improperly before the court and liable to be struck out.
Court orders
#- 1.The notice of motion dated 7th February 2015 is dismissed with costs
- 2.The Defendant's counterclaim contained in the statement of Defence dated 16th November 2011 and filed on 21st November 2011 is struck out with costs for failure to be accompanied by a verifying affidavit as required under Order 4 Rule 1(2) of the Civil Procedure Rules
- Jurisdiction invoked
- Article 159 of the Constitution 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Priska Onyango Ojuang’ & another v Henry Ojwang Nyabende [2018] KEELC 4500 (KLR)", Case Analysis (2018). Not stated in judgment (suit commenced through plaint dated 8th November 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4500/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.