Gateway Insurance Company Ltd v Malachi A Ooro [2004] KEHC 1279 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1769 OF 2001

GATEWAY INSURANCE COMPANY LIMITED ………………….PLAINTFF

VERSUS

MALACHI A. OORO ………………………...……………….DEFENDANT

RULING

When this suit was fixed for hearing the defendant who had filed an application sought to be heard first.

The defendant’s application is a chamber summons dated 23rd September 2004, which is brought under Sections 34 and 35 (1) of the Advocates Act Cap 16, and Order 6 Rule 13 (1) (b) of the Civil Procedure Rules.

The application is based on the following grounds: -

(a) That the affidavit purporting to verify the plaint is a nullity in law for non compliance with the mandatory provisions of Sections 34 and 35 (1) of the Advocates Act;

(b) By reason of the said defect, there is no valid plaint before the court and this Honourable court has no jurisdiction to hear the suit.

In support of the application Mr. Oyatsi for the defendant submitted that the plaint was incompetent and irregular because it was not verified by a proper affidavit and it should therefore be struck out. He said that although the verifying affidavit has the drawer’s name shown thereon, there was no signature on the drawer’s name and accordingly the affidavit is not properly endorsed with the name of the firm of advocates, the drawers. He argued that the endorsement of the plaint just like the plaint becomes complete when the drawer signs it.

The defendant relied on the case of BARCLAYS BANK OF KENYA LTD – V – DR SOLLOMON OTIENO ORERO HCCC NO 1736 OF 2001(unreported). The objection raised in this case was that the verifying affidavit failed to bear the endorsement of the person who drew it, prepared and filed it or the name of the firm of advocates from which either a partner therein or an advocate employed by the firm who drew or prepared the affidavit. The preliminary objection was upheld. That case and this one are distinguishable. On one hand the Barclay’s case there was no endorsement, that is no indication, of who drew the verifying affidavit. In the present case the drawer and its address is shown but no signature appears on that endorsement.

The defendant also relied on the case of JOHANN DISTELBERGR NO. 1587 OF 2002 (unreported). The facts are the same as in the Barclay’s case and the court upheld the preliminary objection.

Defence counsel concluded by saying that the defect in failing to sign next to the drawer’s name goes to the root of the plaint and that plaint should therefore be struck out.

The plaintiff’s counsel, Miss Tindi, opposed the application and in so doing relied on the grounds of opposition filed in court on 8th October 2004. I was unable to trace those grounds in the court file. Miss Tindi submitted that the defendant’s application had no merit and that it was an abuse of the court’s process. The verifying affidavit counsel submitted, did not contravene Sections 34 and 35 (1) of Cap 16, because the name of the firm that drew the plaint and verifying affidavit as seen in sections 34 and 35 do not require signature. To qualify to meet the requirement of endorsement it was enough to show who drew the affidavit. Counsel pointed out to the plaint, which she said was signed by the firm that drew it and that sufficed for the requirement of those sections. Plaintiff relied on the case of DUBAI BANK KENYA LTD – V – COMECONS AFRICA LTD HCCC NO 68 OF 2003 where the judge held that the omission of the drawer’s name on a verifying affidavit was a mere irregularity in form and under Order 18 Rule 7 of the Civil Rule 7 of the Civil Procedure Rules held the same to be regular.

Plaintiff also relied on HCCC 966 OF 2000 PASTIFICIO LUCIO GAROFALO S.P.A. – V – SECURITY & FIRE EQUIPMENT CO & ANOTHERand HCCC 810 OF 2001 MICROSOFT CORPORATION – V – MITSUMI COMPUTER GARAGE LTDwhich cases the court declined to strike out the suit and counsel prayed that I would be persuaded by these authorities. I must now say that I stumbled on the grounds of oppositions attached to the authorities.

The defence counsel in response argued that this is a court of law and not a court of sympathy and if the advocate had made a mistake he should bear the responsibility of his own mistake.

Since the issue that arose during submission is on whether a signature should be appended on the drawer’s name or on a verifying affidavit I thought it useful to confirm what the Civil Procedure Rules have to say in that regard. Order 6 Rule 14 states: -

“Every pleading shall be signed by an advocate or recognized agent (as defined by Order III, rule 2), or by the party if he sues or defends in person”.

The definition Section of the Civil Procedure Act Section 2 defines pleading as follows: -

“Includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant”.

Clearly from those definitions the affidavit does not require to be signed under the Civil Procedure Rules.

Section 35 (1) Cap 16 states: -

“Every person who draws or prepares, or causes to be drawn or prepared, any document or instrument referred to in Section 34 (1) shall at the same time endorse or cause to be endorsed thereon his name and address, or thereon his name and address, or the name and address of the firm of which is a partner……”.

I must begin by saying that I am of the persuasion that breach of this section makes the affidavit, or any other documents stated in Section 34, incurably defective and such failure invalidates or declares such document or instrument in question to be defective.

The relevant words in Section 35 (1) are “Shall …endorse or cause to endorsed thereon his name and address” The word endorsement in Chambers 21 Century Dictionary is defined as: -

“An act of endorsing or confirming, a signature or other mark endorsing a document……”

That definition clearly shows that endorsement or to endorse is not synonymous with signature, and if that is so then the plaintiff has to endorse the verifying affidavit with plaintiff’s advocates’ name and address as required. I see no breach of Section 35

(1) Cap 16 whatsoever as failure to sign on the drawer’s name is of no consequence thereof.

The end result is that the defendant’s application dated 23rd September 2004 is dismissed with costs to the plaintiff.

Dated and delivered this 16th day of November 2004.

MARY KASANGO

AG JUDGE