Hussein Abdalla Ateib v Josephine Mwikali Mwangangi [2015] KEKC 14 (KLR)
- Court
- KEKC
- Case number
- 14
- Citation
- [2015] KEKC 14 (KLR)
- Decided
- 12 June 2015
The court declines to strike out the suit in its entirety but orders that the verifying affidavit be struck out of the record and grants the plaintiff liberty to amend the plaint and file a fresh compliant within 7 days.
Facts
The plaintiff filed a plaint and a verifying affidavit on June 23, 2014, seeking to inherit the estate of the deceased. The defendant filed a notice of preliminary objection, arguing that the plaintiff's verifying affidavit was not attested by a Commissioner for Oaths and that the suit was incurably defective.
Issues
- Whether the plaint is liable to be struck out due to the verifying affidavit being faulty
- Whether the court has discretion to allow the plaintiff to file a proper verifying affidavit
Reasoning
The court considers the provisions of Order VII, Rule 2 of Civil Procedure Rules and the case of The Delphis Bank Limited v. Asudi (K) Limited & Another. The court holds that the court has discretion to allow the plaintiff to file a proper verifying affidavit, even if the original was faulty.
Outcome
The plaint is not struck out, but the verifying affidavit is struck out of the record.
Orders
- Order that the verifying affidavit of the Plaintiff be and is hereby struck out of the record
- Grant liberty to the Plaintiff to amend the plaint and file and serve the defendant with a fresh compliant within 7 days of the giving of this order
Authorities cited
Legislation (2)
- Civil Procedure Rules
- Oaths and Statutory Declarations Act Cap.15
Cases cited (5)
- The Delphis Bank Limited v. Asudi (K) Limited & Another
- Bishop Gawo and Others v. Nairobi CA No. NAI 345 of 2000
- Microsoft Corporation v. Mitsumi Computer Garage LTD and Mitsumnet (K) LTD
- J.M. Mugo Investment Company limited v. Jackson Mathu t/a gatugu Farm Coffee Board of Kenya
- Rajput v. Barclays Bank of Kenya and 3 others
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