REPUBLIC OF KENYA IN THE HIGH COURT AT NAKURU CIVIL SUIT 47 OF 2003 EUSTACE MWANIKI NGINGA …………..………..PLAINTIFF VERSUS PHILIP KOSKEI BIEGO…………….…….…..1ST DEFENDANT DAVID K. A. KOECH…………………..……...2ND DEFENDANT RAYMOND KIPKORIR RONO……………....3RD DEFENDANT ALEXANDER KIPSIELE RUTO…………..…4TH DEFENDANT EMMY CHIPNGETICH…………………….…5TH DEFENDANT EUNICE CHELAGAT MARINDANY………..6TH DEFENDANT ROSE CHEMTAI KORIR……………………..7TH DEFENDANT JOHN MARINDANY CHEPKWONY………..8TH DEFENDANT WILLIAM KIPNGETICH CHERUIYOT…....9TH DEFENDANT KIPROTICH YEGON………..……………….10TH DEFENDANT RULING The Plaintiff’s application dated 19/11/2003 was listed down for hearing on 1/10/04. However, before it was heard, the defence counsel raised a preliminary objection. He stated that whereas the Plaintiff was named as Eustance Mwaniki Nginga as per the plaint, the verifying affidavit to the plaint was by Eustance Mwangi Nginga and therefore the affidavit was sworn by a stranger to the suit and did not comply with the requirements of Order VII Rule 1(2). Mr. Kahiga for the Plaintiff submitted that the above was a pure typographical error and the same was curable. He urged the court to exercise its discretion and allow the Plaintiff to file another affidavit which was in accordance with the law, saying that striking out of pleadings was a draconian measure which ought to be used sparingly. In Civil Suit No. 142 of 2004 PYRETHRUM PROCESSING CO. LTD VS KITCH AGRICULTURAL CO. LTD I held that the permissive wording of Order VII Rule 1(3) grants
page 1 of 2
the court some discretion and it is not enjoined to strike out each and every plaint whose verifying affidavit is found to be defective. The court can consider the nature of the defect and see whether it goes to the jurisdiction of the court or whether the defect prejudices the adverse party. I agree with Mr. Kahiga that the Plaintiff’s middle name was mistyped as Mwangi instead of Mwaniki and that the error is curabe. I decline to strike out the plaint but order the verifying affidavit be struck out and a fresh compliant verifying affidavit be filed and served upon the Defendant within the next 10 days from the date hereof. DATED at Nakuru this 13th day of October, 2004. DANIEL MUSINGA AG. JUDGE 13/10/2004
page 2 of 2