IN THE MATTER OF AFRICA MERCHANT ASSURANCE COMPANY VS

RULING
1. The applicant sought and was granted orally time to file a certificate of urgency. I vacated the judgment dated awaiting the service of the said certificate. I have noted that an Application has been filed without a certificate of urgency . the same is dated 1/5/2023.
2. The said Application seeks to arrest the judgment and seek further orders of the court. However, it is not seeking any substantive orders.It is a waste of judicial time to set the Application for hearing. It is an open ended carte blanche with no signs of thoughtful evaluation. I must as a result save the Application from the ignominy of its own misery. It is an application breaking every principle set out in order 51 of the civil procedure Rules.
3. It is true when an application is simply defective, it can be cured, if it can be saved. This was well enunciated in the case of Benel Development Limited v First Community Bank Limited [2021] eKLR , the court, MAUREEN A. ODERO  quoted with approval the decision of Hon. Justice Aaron Ringera (as he then was) in MICROSOFT CORPORATION –VS- MITSUMI COMPUTER GARAGE LTD & ANOTHER [2001]eKLR  held 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 ….”
4. in the case of Wanja & another v Roothaert (Miscellaneous Application E193 of 2021) [2022] KEHC 10255 (KLR) (3 June 2022) (Ruling) , the court stated as doth: -
“18. Not every procedural blunder can be excused as a ‘mere technicality’. The filing of a suit is a mandatory statutory provision which the court cannot simply wish away. In the case of Dishon Ochieng v Sda Church [2012] eKLR the court held that an application must be anchored in a plaint and that failure to comply renders the said application fatally defective.
19.The failure/omission of the Applicant to file substantive suit cannot be overlooked as a “mere technicality.”
20.Article 159(d) cannot be used to excuse glaring omissions in adhering to statutory provisions. In Scope Telmatics International Sales Limited v Stoic Company & Another [2017] eKLR, it was held that -“Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure ….”

5. Notwithstanding the grave nature of the judgments that were to be delivered, I don' think the Respondent is aware of the same. I therefore strike out in limine the Application dated 1/5/2023 with costs to the Respondent
6. It will not hurt, if I assess costs for the struck out application at KSH 8,000/= .
7. Directions on 15/5/2023. if the Defendant does not file a substantial Application, a judgment date shall be given.
DELIVERED, DATED and SIGNED at MOMBASA on this 4th day of May 2023. Judgment delivered through Microsoft Teams Online Platform.


KIZITO MAGARE
JUDGE

In the presence of:
Kanyonge for the Applicant
No Appearance for the Respondents
Court Assistant  - Azisa