Introduction
1. This ruling determines the Applicant’s (defendant in the main suit) Notice of Motion application dated 27th February 2024 in which the Applicant seeks to strike out the Respondent’s Plaint dated 12th June 2023.
2. The background of the matter is that by its Plaint dated 12th June 2023, the Respondent herein (plaintiff) commenced proceedings against the Applicant as the defendant seeking the following orders; -
i. A declaration that seizure and repossession on vehicle numbers KCS 278A, KCS 092G, and KCR 024K, the subject of hire purchase agreements between the plaintiff and the Defendant was negligent and in breach of the hire Purchase Agreement under which the vehicles were let out to the plaintiff;
ii. A declaration that the plaintiff is absolutely free and discharged from paying any hire Purchase rentals due and owing from the plaintiff to the Defendant under the said Hire Purchase Agreement;
iii. Damages for breach and /or breach of duty occasioned to the Plaintiff by the Defendants induct;
iv. Interest on damages at Court rated until payment in full;
v. Any other reliefs that this Court rated until payment in full; and
vi. Costs of this suit.
3. In response to the Plaint, the defendant (Applicant herein) filed its Statement of Defence dated 16th February 2024 denying any liability. Following the filing of the defence, the defendant lodged the instant application, seeking among others, that the suit be struck out.
4. According to the Applicant, the Verifying Affidavit to the Plaint was commissioned by one Wasike Rose Nekesa, who was not qualified to practice law on the date she purportedly commissioned the affidavit since she did not have a valid practicing certificate.
5. The application is opposed by the Respondent vide the replying affidavit of Daniel Wakaba Macharia dated 9th April 2024.
6. The Application was canvassed by way of written submissions. The Applicant filed its submissions dated 18th July 2024 while that of the Respondent is dated 7th August 2024.
Analysis and Determination
7. I have carefully reviewed the Notice of Motion application dated 27th February 2024 by the defendant and the plaintiff’s response thereto. I have also considered the submissions filed by the parties in support of their respective positions.
8. The Applicant has taken the position that the verifying affidavit to the plaint is incurably defective, the same having been commissioned by a person not qualified to act as a commissioner of oaths by dint of section 2 of the Oaths and Statutory Declarations Act, Chapter 15 Laws of Kenya as read together with section 9 of the Advocates Act.
9. According to the Applicant, while Section 2 of the Oaths and Statutory Declaration Act provides that Commissioners for oaths are appointed by the Chief Justice and must be practicing advocates, Section 9 of the Advocates Act, describes an advocate as any person admitted to the bar, whose name is listed on the roll and who holds a valid practicing certificate.
10. That in the instant case, the Verifying Affidavit accompanying the Plaint was commissioned by one Wasike Rose Murenga Nekesa an advocate who had never taken out a practicing certificate since her admission in 1993. The Applicant therefore maintains that the Advocate was not qualified to act as a commissioner of oaths since she did not possess a valid practicing certificate at the time she commissioned the Verifying Affidavit.
11. Citing the decision in the case of Hosea Mundui Kiplagat -V- Sammy Komen Mwaita & 2 Others (2013)eKLR, the Applicant submitted that an affidavit commissioned by an unqualified advocate is as good as an affidavit not commissioned at all.
12. The Applicant therefore submits that the Verifying Affidavit attached to the Plaint is not commissioned and, therefore, does not qualify as a valid affidavit under the law. That it is incompetent and cannot be used to support or verify the Plaint as required under Order 4 of the Civil Procedure Rules. The case of Mary Gathoni & another v Frida Ariri Otolo & another [2020] eKLR was cited by the Applicant in support of this position.
13. Consequently, the Applicant maintains that the Plaint and all related pleadings should be struck out and expunged from the record.
14. On its part, the Respondent maintained that Ms. Wasike Rose Nekesa, the Advocate who commissioned the verifying affidavit in support of the Plaint is a duly qualified Advocate of the High Court of Kenya, and a Commissioner for Oaths having been appointed as such by the Chief Justice on 8th December 1999.
15. According to the Respondent, since Ms. Nekesa’s appointment as a Commissioner for Oaths by the Chief Justice on 8th December 1999, the appointment has not been revoked and therefore, the Advocate remains as such.
16. The Respondent therefore submits that the verifying affidavit to the plaint was not commissioned by an unqualified person as alleged by the Applicant. Consequently, it is the Respondent's position that the authorities referred to by the Applicant in its submissions are not relevant to the instant case.
17. The Respondent therefore urged this court to dismiss, with costs, the Applicant’s Notice of Motion Application dated 27th February 2024.
18. From the above, the following are the issues for determination; -
a) Whether the Verifying Affidavit to the Plaint is incurably defective; and
b) Whether the Respondent’s Plaint alongside the pleadings in its entirety should be struck out.
Whether the Verifying Affidavit to the Plaint is defective
19. Section 2 of the Oaths and Statutory Declarations Act, Chapter 15 Laws of Kenya provides for the appointment of Commissioners for Oaths in the following terms;
-
“The Chief Justice may, by commission signed by him, appoint persons being practising advocates to be commissioners for oaths, and may revoke any such appointment.” [emphasis added].
20. Additionally, Section 9 of the Advocates Act, Cap 16 (Laws of Kenya) provides as follows; -
“Subject to this Act, no person shall be qualified to act as an advocate unless: -
a) he has been admitted as an advocate; and
b) his name is for the time being on the Roll; and
c) he has in force a practising certificate;
and for the purpose of this Act, a practising certificate shall be deemed not to be in force at any time while he is suspended by virtue of section 27 or by an order under section 60(4).”
21. From the above, it is evident that a person to be appointed as a Commissioner for Oath must be a practising Advocate. It, therefore, follows that a person who is not a practising Advocate cannot be appointed as a Commissioner for Oaths. Additionally, where a person, having been so appointed, loses the status of a practising Advocate, then such an appointment automatically ceases.
22. In the instant case, it is not in dispute that the Advocate (Ms. Wasike Rose Murenga Nekesa) who commissioned the affidavit was appointed as a commissioner for oath Oaths by the Chief Justice on 8th December 1999. It is equally not in dispute that the Advocate did not take out the practising certificate for the year 2023 when she purportedly commissioned the verifying affidavit of Daniel Macharia dated 12th June 2023 in support of the Plaint.
23. In the circumstances, I hold and find that as rightly submitted by the Applicant, the Verifying Affidavit attached to the Plaint is defective for having been commissioned by an unqualified person and, therefore, does not qualify as a verifying affidavit under Order 4 Rule 2 of the Civil Procedure Rules, 2010.
Whether the Respondent’s Plaint should be struck out.
24. The Applicant’s position is that a Verifying Affidavit commissioned by an unqualified is no affidavit at all and that that renders the Plaintiff’s Plaint of 12th June 2023 fatally defective and as such the same ought to be struck out.
25. Order 4 Rules 1(2) and (6) of the Civil Procedure Rules 2010 provides as follows:
“(2) The Plaint shall be accompanied by an affidavit sworn by the Plaintiff verifying the correctness of the averments contained in Rule 1(1)(f) above.
(3) ………….
(4) ………..
(5) ……..
(6) 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.”
26. In Kenya Agricultural Research Institute (Kari) –Vs- Fatah Ali, Chairman Isahakia Self Help Group & Another [2011] eKLR the Court held as follows: -
“In my view, the plaintiff has to demonstrate that this suit is properly filed and not just brought by a busybody or an officer who has no authority. Such authority should be exhibited. None was exhibited. But as to whether this suit should be struck out just because the authority is not exhibited, I find that to be a drastic measure to be taken at such an early stage. This matter has just been filed by a party who believes they are aggrieved. It is a dispute over land. This court has a duty to do substantive justice to the parties by taking into account the overriding objectives of the Civil Procedure Act as provided under Sections 1A & 1B of the Civil Procedure Act. …”
27. The Court of Appeal in the case of Trust Bank Ltd –Vs- Amalo Co. Ltd (2002) KLR 63 upheld the right of a litigant to be heard and the duty of the court to deliver substantive justice when it stated that;
“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merit and that errors should not necessarily deter a litigant from the pursuits of his right.”
28. Further, in Benel Development Limited v First Community Bank Limited [2021] eKLR, the court (Hon. Justice M. Odero), in deciding on a similar application cited with approval the decision of Hon. Justice Aaron Ringera (as he then was) in the case of Microsoft Corporation –Vs- Mitsumi Computer Garage Ltd & Another [2001]eKLR where the court stated as follows; -
“In my opinion, where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form and procedure which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected. In those instances the Court should rise to its higher calling to do justice by saving the proceedings in issue. In the matter at hand I am of the view that the error manifest in the verifying affidavit neither goes to the jurisdiction of the Court nor prejudices the defendants in any fundamental respect. Indeed no prejudice has been alleged.
Being of that persuasion, I think the ends of justice would best be served by sustaining the proceedings by declining to strike out the suit while at the same time putting right the lapses in the offending affidavit. I am fortified in this view of the matter by two consideration. First, sub rule (3) of rule (1) of order VII itself seems by the usage of the word “may” to leave the striking out of a plaint which is not accompanied by a verifying affidavit within the realm of discretion. If a discretion can be exercised in the case of an omission of the verifying affidavit, a fortiori it is also exercisable in the event of such an affidavit being incompetent. Secondly, and to me this is equally important, an appreciation of the mischief which the rule was meant to cure inclines me to the same conclusion. ... The broad purpose of the verifying affidavit is thus to verify the contents of the plaint. That purpose may be attained by rejecting a defective affidavit and ordering that a fresh and complying one be made and filed on record ….”
29. From the above, it is evident that under Order 4 Rule (2) (6), the striking out of any suit or counterclaim which does not comply with sub-rule (2) (3), (4), and (5) of Order 4 rule 1 of the Civil Procedure Rules, 2010 is a matter for the discretion of the court. However, that discretion should in my view be exercised bearing in mind the dictates of Article 159 (2) (d) of the Constitution which directs that in exercising judicial authority, courts and tribunals must always ensure that (substantive) justice is administered without undue regard to procedural technicalities.
30. In the circumstances of this case, I am reluctant to strike out a suit just because the verifying affidavit was commissioned by an unqualified person. I am of the view that the Plaintiff can be allowed time within which to remedy the defect failing which the Court can then take that drastic action of striking out the pleadings.
31. In the premises I strike out the Verifying Affidavit sworn by Daniel Macharia on 12th June 2023 and direct the Plaintiff/Respondent to file and serve a fresh and compliant Verifying Affidavit within seven (7) days of the date of this Ruling failure to which the suit shall automatically stand struck out.
32. Accordingly, I find no merit in the present application and hereby dismiss the same.
33. On costs, I direct that the Plaintiff/Respondent shall meet the costs of this Application since the same was necessitated by the Respondent’s omissions and lapses.
34. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF DECEMBER, 2024
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Khadija h/b for Dr. Chokaa………...for Applicant
……N./A……...for Respondent