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ELCDismissed· [2020] KEELC 3155 (KLR)

Galerius Investments Limited v County Government of Mombasa & another [2020] KEELC 3155 (KLR)

Environment and Land Court
25 February 2020
CYC.K. Yano
1,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa struck out a counter-claim because it was filed without the verifying affidavit that Kenyan law requires.

What this practically means

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Executive summary

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The 1st Defendant moved the court by Notice of Motion dated 25th May 2019 seeking leave to annex a verifying affidavit to her Amended Defence and Counter-claim filed on 3rd April 2019, and to have the affidavit deemed filed and served with that pleading. She explained the omission as inadvertent mistake by her advocates, arguing that a mistake of counsel should not be visited on the client and that no prejudice would befall the plaintiff. The plaintiff opposed by notice of preliminary objection and replying affidavit, contending the application was incompetent and that the Defence and Counter-claim, filed without a verifying affidavit contrary to Order 7 rule 5 of the Civil Procedure Rules, should be struck out. The court framed four issues, including whether a counter-claim filed without a verifying affidavit is a proper suit and whether such an affidavit may be filed long after filing. Relying on Order 4 Rule 1(2), Order 4 Rule 2(5) and Order 7 rule 5(a), the court held that a counter-claim must be accompanied by a verifying affidavit at the time of filing, in the same way as a plaint, and that these provisions are couched in mandatory terms. Observing that the motion was filed only after the plaintiff's preliminary objection of 8th April 2019, the court found the application aimed at circumventing that objection and declined to exercise its discretion in the 1st defendant's favour. The motion was dismissed with costs, and the counter-claim was struck out with costs for failure to comply with the verifying affidavit requirement. The main suit continues; only the counter-claim was struck out.

Key legal issues

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01

Whether a counter-claim filed without a verifying affidavit is a proper suit

Holding

It is not; the counter-claim is improperly before the court and must be struck out.

Reasoning

Order 4 Rule 2(5) applies the verifying-affidavit requirement for plaints mutatis mutandis to counter-claims, and Order 7 rule 5(a) requires a defence and counter-claim to be accompanied by an affidavit under Order 4 rule 1(2). The court found these provisions couched in mandatory terms, so non-compliance at the time of filing rendered the counter-claim improper notwithstanding the later application to regularise.

p. 2
02

Whether leave could be granted to annex a verifying affidavit long after filing

Holding

Leave was refused; the discretion could not be exercised in the 1st defendant's favour.

Reasoning

The motion was filed on 25th May 2019, after the plaintiff's notice of preliminary objection of 8th April 2019 seeking striking out. The court viewed the timing as indicating the application was prompted by, and aimed at circumventing, the plaintiff's objection, and held that granting leave would prejudice that objection.

p. 2

Legal principles established

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  • A counter-claim must be accompanied by a verifying affidavit at the time of filing, in the same manner as a plaint.
  • The requirements of Order 4 rule 1(2) and Order 7 rule 5(a) of the Civil Procedure Rules are mandatory; a counter-claim filed without a verifying affidavit is improper and liable to be struck out.

Court orders

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  1. 1.The notice of motion dated 25th May 2019 be and is hereby dismissed with costs.
  2. 2.The 1st defendant's counter-claim contained in the Amended statement of Defence dated 28th March 2019 and filed on 3rd April 2019 be and is hereby struck out with costs for failure to be accompanied with a verifying affidavit as required under Order 4 rule 1(2) as read with Order 7 rule 5(a) of the Civil Procedure Rules.

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(2)
  • Civil Procedure RulesOrder 4 Rule 2(5)
  • Civil Procedure RulesOrder 7 Rule 5(a)
Jurisdiction invoked
Original civil jurisdiction; Civil Procedure Rules, Order 4 rule 1(2) and Order 7 rule 5(a)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Galerius Investments Limited v County Government of Mombasa & another [2020] KEELC 3155 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3155/eng@2020-02-25

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