Joseph Okoto v Edwin Dickson Wasunna [2013] KEHC 146 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT NAIROBI

ELC CIVIL SUIT NO. 1000 OF 2012

JOSEPH OKOTO……………………… …….….…..…..….PLAINTIFF

VERSUS

EDWIN DICKSON WASUNNA……..….………………… DEFENDANT

RULING

The Notice of Motion for determination is one brought by the Defendant dated on 4th June 2013, seeking orders that the Plaint be struck out for non-compliance with the law, practice and/or procedure. The grounds for the application is that the Plaintiff filed the said Plaint without it being accompanied by a verifying affidavit which by law is mandatory. The said Notice of Motion is supported by an affidavit sworn by the Defendant on 4th June 2013.

The Defendant’s counsel submitted during the hearing of the said Notice of Motion on 25th September 2103 that despite the defect having pointed out in the Defence,  the Plaintiff refused to rectify it and instead proceeded to file a reply to the Defence and Counterclaim. Further that the court’s discretion in this regard must be exercised judicially, as the requirement to file a verifying affidavit to a plaint is not a mere technicality but a legal requirement .

The Plaintiff opposed the Notice of Motion in replying affidavits both sworn on 20th September 2013 by his Advocate T.J. Kajwang, and by Susan Otieno, a legal clerk employed in the Plaintiff’s Advocates office. They admitted to the failure to file the verifying affidavit and explained that this was due to a mistake and confusion on the part of the legal clerk. The Plaintiff’s counsel during submissions made in court also relied on the decisions in Mountain view Transporters Ltd & Another vs Alcon Holdings Ltd and Others, Nairobi HCCC No. 385 of 2004 and Masefield Trading (K) Ltd vs Rushmore Company Ltd &Another, Nairobi HCCC No. 1794 of 2000 for the position that Order 4 Rule 1 of the Civil Procedure Rule that requires the filing of a verifying affidavit together with the Plaint was directory and not mandatory.

I have carefully considered the pleadings filed and submissions made by the Plaintiff and Defendant.  The issue for determination is whether the Plaint filed herein should be struck out for the reason that it was not accompanied by a verifying affidavit sworn by the Plaintiff. It is in this regard not disputed herein that the Plaintiff did not file a verifying affidavit together with his Plaint.

The law on this issue is Order 4 Rule 1(2) of the Civil Procedure Rules, which requires a Plaint to be accompanied by an affidavit sworn by the Plaintiff, verifying the correctness of the averments that are required to be contained in a Plaint to the effect that there is no other suit pending; that there have been no previous proceedings in any court between the plaintiff and the defendant over the same subject matter; and that the cause of action relates to the plaintiff named in the plaint. Under Order 4 Rule 1(6) it is further provided as follows:

“The court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.”

This court is therefore given discretion as to whether or not to strike out a Plaint for non-compliance with Order 4 Rule 1(2) of the Civil Procedure Rules. In exercising this discretion this court is reminded of the settled principle of law that the power of the Court to strike out pleadings should be used sparingly and cautiously, as it is exercised without the court being fully informed on the merits of the case.  This was stated In D.T. Dobie & Company (Kenya) Ltd. v. Muchina [1982] KLR 1 at p. 9  by Madan, J.A.as follows:-

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

It is my view that the defect complained of by the Defendant herein is one that can be easily remedied by the Plaintiff through the filing and serving of a verifying affidavit, and which remedy shall not cause any prejudice to the Defendant. This court will therefore exercise its discretion in favour of the Plaintiff, so as to ensure that the overriding objective of achieving substantive justice is met as provided by sections 1A and 1B of the Civil Procedure Act, and Article 159(2)(d) of the Constitution.

The Plaintiff is therefore hereby granted leave to file and serve a verifying affidavit to the Plaint filed herein within 15 days of the date of this ruling. To this extent the Defendant’s Notice of Motion dated 4th June 2013  is accordingly denied, and the costs of the said Notice of Motion shall be in the cause.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this ____7th day of_November____, 2013.

P. NYAMWEYA

JUDGE