Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment· [2021] KEELC 1034 (KLR)

Ethics and Anti-Corruption Commission v Peter Mareteh Muginga & another; Stanley Thirima & 3 others (Interested Parties) [2021] KEELC 1034 (KLR)

Environment and Land Court
10 November 2021
931 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a labelling error in a verifying affidavit is a fixable mistake, not grounds to throw out a land dispute case.

What this practically means

#

Executive summary

#
This was an interlocutory objection by the 1st interested party in an ELC suit at Meru, seeking the striking out of the plaintiff's amended plaint and its verifying affidavit (described as 'amended verifying affidavit') as defective and bad in law. The 1st interested party, through Mr. Wambua, argued that an affidavit cannot be amended in law. C.K. Nzili J reviewed Order 19 rule 7 of the Civil Procedure Rules, which confers discretion on the court to receive an affidavit despite a defect of misdescription, irregularity or other technicality, and Order 4 rule 1(1)(f), which requires a plaint to be accompanied by a verifying affidavit. Drawing on authorities including Gideon Sitelu Konchella v Sunkuli, Peeraj General Trading v Mumias Sugar, Grantham v NSSF and Teclah Tuwei v Chirchir, the court held that an error in a verifying affidavit does not ordinarily lead to striking out the plaint, since the defect can be cured by filing another affidavit. The court found the objection went to form, not substance, and that no party had been prejudiced. The objection was declined; the plaintiff was granted leave to rectify the defect within 7 days, and parties were ordered to comply with Order 11 and set the matter down for hearing within 45 days. No costs order was made.

Key legal issues

#
01

Whether describing a verifying affidavit as 'amended' is a fatal defect

Holding

It is a defect of form, not substance, and is curable under Order 19 rule 7

Reasoning

The court reviewed authorities showing that courts possess discretion to receive affidavits despite technical defects. It found the 1st interested party's objection targeted form rather than substance and that no party had been prejudiced by the alleged defect. The plaint itself was in order, and the irregularity did not go to the root of the plaint, so striking out was unwarranted.

p. 2
02

Whether an affidavit can be amended in law

Holding

Although a plaint and its verifying affidavit are distinct documents, leave to amend a plaint necessarily requires a compliant verifying affidavit to cover the amendments; the defect is cured by filing a fresh/compliant affidavit

Reasoning

Relying on Grantham v NSSF, the court noted Njagi J's statement that a plaint and verifying affidavit are entirely different documents, and that granting leave to amend a plaint necessarily entails amending the verifying affidavit. Other authorities allowed filing of compliant verifying affidavits, supporting rectification rather than striking out.

p. 2

Legal principles established

#
  • An error in a verifying affidavit does not always lead to striking out the plaint, as the defect is curable by filing another affidavit
  • Order 19 rule 7 grants the court discretion to receive an affidavit notwithstanding a defect in misdescription, irregularity or other technicality

Court orders

#
  1. 1.The plaintiff is granted leave to rectify the defect (the misdescribed 'amended verifying affidavit') within 7 days from the date of the ruling
  2. 2.Parties are ordered to comply with Order 11 and set down the matter for hearing within 45 days from the date of the ruling

Authorities

#

Legislation

  • Oaths and Statutory Declaration ActCap 15 Laws of Kenya; Section 4
  • Civil Procedure RulesOrder 19 rule 7; Order 4 rule 1(1)(f) and rule 2; Order 7 rule 5; Order 11; Order VIA rules 3, 5 and 8; Order VII rule 2; Order XVIII rules 1, 4 and 7
  • Civil Procedure ActSection 3A
  • Advocates ActSection 35

Cases cited (7)

  • Gideon Sitelu Konchella –vs- Julius Lekakeny Ole Sunkuli & 2 Others
    [2018] eKLR
  • Premchand Raichard & Another Ltd. –vs- Quarry Services and Others
    [1969] E.A
  • Maureen Nyambura Ngigi Warui –vs- Board of Directors Kenya Power & Lighting Co. Ltd & 2 Others
    [2020] eKLR
  • Francis A. Mbalanya –vs- Cecilia N. Waema
    [2017] eKLR
  • Peeraj General Trading & Contracting Co. Ltd, Kenya & Another –vs- Mumias Sugar Co. Ltd.
    [2016] eKLR
  • David Jonathan Grantham & Another –vs- National Social Security Fund
    [2007] eKLR
  • Teclah Jepkirui Wilson Tuwei (Administrators of the Estate of the late Malakweu Arap Cheruiyot) –vs- Kimaiyo Chirchir
    [2021] eKLR
Jurisdiction invoked
Environment and Land Court Act (first-instance civil suit; court styled ELC Judge)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v Peter Mareteh Muginga & another; Stanley Thirima & 3 others (Interested Parties) [2021] KEELC 1034 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1034/eng@2021-11-10

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