Automated Summary
Key Facts
The court allowed the defendant's application under Order 7 of the Civil Procedure Rules to strike out the plaint. The plaint was struck out due to non-compliance with Order 7 rule 1(1)(e) (failing to include mandatory averments about prior proceedings) and a verifying affidavit that did not confirm the correctness of the plaint's statements. The ruling emphasized the mandatory nature of these requirements and the lack of discretion for the court to permit amendments in this case.
Issues
- The court examined whether the verifying affidavit accompanying the plaint complied with Order 7 Rule 1(2), which requires the plaintiff to swear an affidavit verifying the correctness of the plaint's averments. The applicant contended the affidavit did not explicitly verify the averments, while the respondent argued the substance sufficed. The court referenced prior rulings (e.g., Bishop Joshua Gawo case) to affirm that a verifying affidavit must explicitly confirm the plaint's accuracy, and its absence justified striking out the plaint.
- The court addressed whether non-compliance with Order 7 Rule 1(1)(e) of the Civil Procedure Rules—requiring a plaintiff to state in the plaint whether prior proceedings have occurred between the parties over the same subject matter—constitutes a valid basis for striking out the plaint. The applicant argued the plaint lacked this mandatory averment, while the respondent claimed the omission could be cured by amendment. The court emphasized the rule's mandatory nature to prevent case duplication and held that the absence of this averment rendered the plaint invalid, as it could not be remedied by amendment.
Holdings
The court allowed the application to strike out the plaint due to non-compliance with mandatory rules: (1) absence of averments regarding prior proceedings between the parties under Order 7 rule 1(1)(e), and (2) a verifying affidavit that failed to confirm the correctness of the plaint's averments under Order 7 rule 1(2). The court emphasized these rules' mandatory nature, which could not be cured by amendment, and held that the plaintiff had not demonstrated sufficient grounds to exercise judicial discretion.
Remedies
The court granted the application to strike out the plaint due to non-compliance with mandatory rules and awarded costs to the applicant/defendant.
Legal Principles
The court emphasized the mandatory requirement of including a verifying affidavit under Order VII r1 (2) of the Civil Procedure Rules, noting that its absence can lead to the striking out of a plaint. It also referenced the principle from the case of D T Dobie & Company (Kenya) Ltd vs Joseph Mbaria Muchina, which states that a suit should not be summarily dismissed unless it is hopeless and lacks any reasonable cause of action. However, this principle was not directly applied to the current case due to the mandatory nature of the procedural rules involved.
Precedent Name
- Bishop Joshua Gawo & Others vs Nairobi City Council & Others
- D T Dobie & Company (Kenya) Ltd vs Joseph Mbaria Muchina
- R vs Immigration Appeal Tribunal Ex parte Jeyeanthen Ravichandran vs Secretary of State of House Affairs
Cited Statute
- Civil Procedure Rules
- Civil Procedure Act
Judge Name
J.W. Onyango Otieno
Passage Text
- The rule clearly states that the plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in the plaint.
- I do feel that under the above circumstances, I have no alternative but to allow this application. The plaint is struck out with costs to the applicant/ defendant.
- 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.