Simion Ogada Andiwo v Safaricom Plc & 15 others [2021] KEHC 682 (KLR)
- Court
- High Court of Kenya
- Case number
- 682
- Citation
- [2021] KEHC 682 (KLR)
The plaintiff's mistake in filing a Supporting instead of a Verifying Affidavit is not fatal to the suit. The procedural defect will be cured by the Plaintiff filing a Verifying Affidavit.
Facts
The plaintiff filed a suit against 16 defendants, including a Notice of Motion and a Notice of Preliminary Objection. The defendants argued that the plaintiff's suit was incompetent due to a lack of a Verifying Affidavit and that the Notice of Preliminary Objection was not a pure point of law.
Issues
- Whether the plaintiff’s suit is incompetent for want of a verifying affidavit
- Whether the Notice of Preliminary Objection filed by the plaintiff meets the threshold required in Law
Reasoning
The court held that the plaintiff's mistake in filing a Supporting instead of a Verifying Affidavit is not fatal to the suit. It is a mistake that is curable under Article 159(2)(d) of the Constitution. The court can make any other appropriate orders such as giving the plaintiffs another opportunity to comply by filing a Verifying Affidavit.
Outcome
The plaintiff's suit is not struck out.
Orders
- The court be pleased to grant any further orders as it deems just in the circumstances.
- That the costs of this Application be awarded to the Applicants.
Authorities cited
Legislation (3)
- Civil Procedure Act Cap 21
- Order 2 Rule 15 (1) (a), (b) and (d) of the Civil Procedure Rules CAP 21
- Article 159(2) (d) of the Constitution of Kenya
Cases cited (6)
- Coast Development Authority vs Adam Kazungu Mzamba & 49 others [2016] eKLR
- Microsoft Corporation vs Mitsumi Computer Garage Ltd & Another Nairobi (Milimani) HCCC NO. 810 OF 2001 [2001] KLR 470; [2001] 2 EA 460
- Lazararus Kabete vs Andero Njairu Mugo HCCC No.1222 of 1999
- Mukisa Biscuits Manufacturing Company Limited vs West End Distributors [1969] EA 696 (Sir Charles Newbold P, Duffus VP and Law JA)
- Oraro Mbaja [2005] 1 KLR 141
- Avtar Singh Bhamra & Another vs Oriental Commercial Bank Civil Suit No. 53 of 2004
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