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ELCAllowedNot stated in judgment (suit filed 16th November 2017, Mombasa)· [2019] KEELC 2045 (KLR)

Kanji Harji v Christopher Ngatia Wanjohi [2019] KEELC 2045 (KLR)

High Court of Kenya
24 July 2019
867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court ruled that filing a suit without a verifying affidavit is a fixable mistake, not a fatal one.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 25th May 2018 in which the Plaintiff sought leave to file a verifying affidavit after instituting a suit on 16th November 2017 without one. The Plaintiff's advocate, Mr. Mutugi, explained that the affidavit had been paid for at filing as evidenced by the receipt but was omitted by inadvertence, and urged the court to invoke Article 159 of the Constitution. The Defendant, through Mr. Ondego and Grounds of Opposition dated 13th March 2019, contended that a plaint filed without a verifying affidavit, as mandatorily required by Order 4 Rule 1(2) of the Civil Procedure Rules, is a nullity incapable of being cured, and that the application was anchored on irrelevant provisions of law, relying on Craig v Kanseen and Macfoy v United Africa Co. Ltd. The court, C.K. Yano J, framed a single issue: whether the Plaintiff should be granted leave to file the verifying affidavit. Perusing the filing receipt, the court confirmed the affidavit had been paid for. Adopting Ringera J's reasoning in Microft Corporation v Mitsumi Computer Garage that procedural rules are handmaidens and not mistresses of justice, the court held that the omission did not warrant striking out the suit. It further held, relying on Section 1A of the Civil Procedure Act and Article 159(2)(d), that the application should not fail for having cited the wrong provisions. The application was allowed; the Plaintiff was directed to file and serve a verifying affidavit within 7 days, with costs in the cause.

Key legal issues

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01

Whether a suit filed without a verifying affidavit is a nullity and incapable of being cured

Holding

No; the omission does not nullify the suit and leave to file the affidavit may be granted

Reasoning

The court adopted Ringera J's reasoning in Microft Corporation v Mitsumi Computer Garage that rules of procedure are handmaidens, not mistresses of justice. The receipt showed the verifying affidavit was paid for at filing, demonstrating an attempt to comply. A lapse that does not go to jurisdiction or prejudice the adverse party should not nullify proceedings; the proper course is to order a fresh complying affidavit rather than strike out the suit.

p. 1
02

Whether reliance on the wrong statutory provisions defeats the application

Holding

No; the application should not fail for citing the wrong provisions

Reasoning

The court invoked Section 1A of the Civil Procedure Act on the overriding objective and Article 159(2)(d) of the Constitution requiring justice without undue regard to procedural technicalities. Relying on the authorities of Thomas Ratemo Ongeri and Nancy Nyamira, the court held that anchoring an application on irrelevant provisions is not fatal where the substance of the relief sought is clear.

p. 2

Legal principles established

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  • An omission to file a verifying affidavit alongside a plaint does not warrant striking out the suit where the filing fee for the affidavit was paid, as procedural rules should not be elevated to a fetish.
  • An application will not fail merely because it is anchored on the wrong provisions of the law, given the overriding objective and Article 159(2)(d).

Court orders

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  1. 1.The Plaintiff to file and serve a verifying affidavit within 7 days from the date of delivery of the ruling
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 3A, 63, 100
  • Civil Procedure RulesOrder 4 Rule 1(2); Order 8 Rules 3 and 5

Cases cited (5)

  • Craig –v- Kanseen
    (1943) Vol. 1 ALL ER 108
  • Macfoy –v- United Africa Co. Ltd
    (1996) Vol III ALL ER 1169
  • Microft Corporation –v- Mitsumi Computer Garage
    (Milimani) HCCC NO. 810 of 2001 (2001) KLR 470
  • Thomas Ratemo Ongeri & 2 Others –v- Zacharia Isaboke Nyaata & Another
    (2014) eKLR
  • Nancy Nyamira & Another –v- Archer Aramond Morgan Ltd
    (2012) eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 1A, 3A, 63 and 100 of the Civil Procedure Act; Order 8 Rules 3 and 5 of 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, "Kanji Harji v Christopher Ngatia Wanjohi [2019] KEELC 2045 (KLR)", Case Analysis (2019). Not stated in judgment (suit filed 16th November 2017, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2045/eng@2019-07-24

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