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Court of AppealDismissedCivil Appeal No. 21 of 2004

Ernard Onkoba Tinega T/A Betico Auctioneers & another v National Bank of Kenya Limited [2010] KECA 29 (KLR)

Court of Appeal
2 December 2010
EOE.O. O'KubasuEGE.M. GithinjiJNJ.G. Nyamu
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a minor defect in a verifying affidavit—missing the commissioner for oaths' name—cannot kill a lawsuit.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against the ruling of Bauni J. delivered at Kisii on 26 October 2004 in Kisii H.C.C.C. No. 127 of 2003. The respondent, National Bank of Kenya Limited, had sued the appellants for Kshs.3,172,410 with interest. The appellants applied under Order VI Rule 13 and section 3A of the Civil Procedure Act to strike out the plaint and amended plaint, principally on the ground that the verifying affidavit did not disclose the name of the commissioner for oaths, showing only a firm's stamp, and on an allegation of non-disclosure of a previous suit between the parties. The High Court dismissed the application, holding that the omission was not fatal and that the matter was not fit for summary dismissal. The appellants advanced nine grounds of appeal, including breach of section 5 of the Oaths and Statutory Declarations Act, sections 34 and 35 of the Advocates Act, and an alleged violation of stare decisis. The appeal was heard on 1 December 2010 with no appearance for the respondent, service having been proved. The Court of Appeal, citing sections 3A and 3B of the Appellate Jurisdiction Act on the overriding objective, held that the defect in the verifying affidavit was one of those technicalities that should not be entertained, found the learned Judge could not be faulted, and dismissed the appeal with costs to the respondent on 2 December 2010.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a verifying affidavit whose name of the commissioner for oaths is not specifically endorsed, showing only a firm's stamp, is fatally defective
  2. 2.Whether the learned Judge erred in refusing to strike out the plaint and amended plaint on account of the allegedly defective verifying affidavit
  3. 3.Whether the respondent was improperly permitted to file a fresh suit after an earlier suit between the same parties had been dismissed

Key legal issues

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01

Whether a verifying affidavit lacking the specific name of the commissioner for oaths is fatal to the plaint

Holding

The Court upheld the High Court's refusal to strike out the verifying affidavit; the omission was a mere technicality not warranting striking out the plaint.

Reasoning

The High Court had found that Order 7 rule 1(2) CPR required a verifying affidavit and that the initial plaint was accompanied by one. The only defect was that the name of the commissioner for oaths was not specifically endorsed, only the stamp of the firm of Maari & Co. Advocates. The Court of Appeal agreed this was a curable, non-fatal omission and declined to allow the appeal on that ground.

p. 3
02

Whether the appeal disclosed grounds warranting interference with the exercise of the High Court's discretion

Holding

The Court found the appeal lacked merit and the learned Judge could not be faulted in his handling of the striking-out application.

Reasoning

Having considered the appellant's submissions on the verifying affidavit and the alleged non-disclosure of a previous suit between the parties, the Court concluded that the Judge properly dealt with the issues and that the appeal did not merit interference. The Court invoked sections 3A and 3B of the Appellate Jurisdiction Act on the overriding objective in dismissing the appeal.

p. 3

Legal principles established

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  • An omission of the specific name of the commissioner for oaths on a verifying affidavit, where the stamp of a firm of advocates who are commissioners for oaths appears, is an immaterial technicality that does not render the affidavit or the plaint fatally defective.
  • Courts should not entertain technicalities that add no value to the expeditious determination of disputes, consistent with the overriding objective.

Court orders

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  1. 1.The appeal was dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Kisii
Kisii H.C.C.C. No. 127 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act from the ruling of the High Court

Relief refused

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Setting aside the High Court ruling dismissing the application to strike out the plaint and amended plaint

The Court found the defect in the verifying affidavit to be a technicality that should not be entertained

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we are satisfied that this is one of those technicalities that should not be entertained as they add no value to expeditious determination of disputes in our courts.
p. 3De minimis technicalities and the overriding objective
In view of the foregoing we are satisfied that this appeal lacks merit and we order that it he and is hereby dismissed will costs to the respondent.
p. 4Final orders - dismissal of the appeal with costs
3A(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just expeditious, proportionate and affordable resolution of the appeals governed by the Act.
p. 1Overriding objective under the Appellate Jurisdiction Act

Issues in the judgment

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material

The judgment is headed 'DRAFT JUDGMENT OF THE COURT', yet it bears dated delivery at Kisumu; the copy analysed may not be the final signed version.

minor

The hearing date is recorded as '1st December, 210', an evident typographical error for 2010.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ernard Onkoba Tinega T/A Betico Auctioneers & another v National Bank of Kenya Limited [2010] KECA 29 (KLR)", Case Analysis (2010). Civil Appeal No. 21 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/29/eng@2010-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.