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Court of AppealAllowedCivil Appeal No. 91 of 2009

Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2015] KECA 572 (KLR)

Court of Appeal
3 July 2015
WKW. KaranjaGKG.B.M. KariukiFAF. Azangalala
3,581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a lawsuit struck out over a technical affidavit error, ruling procedure should not defeat justice.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against the ruling of the High Court (Khamoni, J) of 23rd May 2008 striking out the appellants' suit for want of a compliant verifying affidavit. The appellants, former employees of the respondent, had sued for wrongful termination of their employment pursuant to a purported redundancy. Their plaint was accompanied by a single verifying affidavit sworn by the 30th plaintiff purporting to act on behalf of his co-plaintiffs, without written authority filed in the suit as required by Order I rule 12 of the then Civil Procedure Rules. The High Court held this non-compliance with Order VII rule 1(2) fatal and struck out the suit, declining to order the filing of a compliant affidavit since no such application had been made. The Court of Appeal allowed the appeal. It affirmed that each of several plaintiffs must verify the plaint personally, or one may do so only under written authority filed in court, an interpretation now embodied in Order 4 rule 1(3) of the Civil Procedure Rules 2010. However, the striking-out power is discretionary, not mandatory. The court held that the judge erred in visiting counsel's mistake upon the litigants in the absence of special circumstances or fundamental prejudice to the respondent, and noted that limitation had expired, so the appellants could not mount a fresh suit. Invoking the principle that rules of procedure are handmaidens of justice, the court set aside the striking-out order, substituted an order dismissing the respondent's application with no order as to costs, reinstated the suit, granted the appellants thirty days to file compliant verifying affidavits, and awarded the appellants the costs of the appeal.

Questions the Court framed

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

  1. 1.Whether a plaint filed by multiple plaintiffs must be accompanied by a verifying affidavit sworn by each plaintiff, or whether one plaintiff may swear it on behalf of the others
  2. 2.Whether the failure to file written authority under Order 1 rule 12 of the Civil Procedure Rules rendered the single verifying affidavit a nullity
  3. 3.Whether the High Court judge properly exercised his discretion in striking out the suit rather than ordering the filing of a compliant verifying affidavit
  4. 4.Whether the appellants should be visited with the consequences of their advocates' negligence in filing a defective verifying affidavit

Key legal issues

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01

Compliance with Order VII rule 1(2) where there are multiple plaintiffs

Holding

A single verifying affidavit sworn by one plaintiff without written authority filed in the case does not comply with Order VII rule 1(2) as read with Order 1 rule 12(1) and (2) of the Civil Procedure Rules.

Reasoning

The court adopted its earlier decisions in Research International East Africa Ltd v Arisi and Kenya Oil Company Ltd v Gosrami, holding that each plaintiff must verify the plaint personally, or one may do so only under written authority filed in court. This interpretation has now received legislative sanction in Order 4 rule 1(3) of the Civil Procedure Rules 2010. The High Court judge properly appreciated these provisions.

p. 4
02

Discretion to strike out for a defective verifying affidavit

Holding

The striking-out power is discretionary and permissive; the court below erred in striking out the suit where the defect was attributable to counsel, no fundamental prejudice to the respondent was shown, and the limitation period had expired such that the appellants could not file a fresh suit.

Reasoning

The court held that the normal practice is not to visit counsel's mistake upon the client, and the judge disclosed no special circumstances justifying departure from that practice. The function of courts is to administer justice to litigants, not to discipline erring counsel. Because the claims were founded on contract and limitation had expired, striking out would drive the appellants from the judgment seat in a case that was not hopeless.

p. 6
03

Purpose of the verifying affidavit requirement

Holding

The primary purpose of rule 1(2) of Order VII was to prevent the filing of suits on behalf of plaintiffs without their express instructions, addressing the mischief of 'ambulance chasing'.

Reasoning

Tracing the rule to Legal Notice No. 36 of 5th May 2000, the court adopted Ringera J's exposition of the mischief. While the single affidavit filed did not strictly comply, the court treated the defect as one of form capable of cure by leave to file a compliant affidavit, consistent with Microsoft Corporation v Mitsumi and Flystar v Delphis Bank.

p. 3

Legal principles established

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  • Where there are several plaintiffs, each must verify the plaint by his own verifying affidavit unless written authority, filed in the case, authorises one plaintiff to swear it for the others; a single verifying affidavit without such written authority does not comply with Order VII rule 1(2).
  • The power to strike out a plaint for a defective verifying affidavit is discretionary, not mandatory, and should be exercised sparingly; a court may instead order compliance with the rule.
  • Rules of procedure are handmaidens of justice; procedural lapses that do not go to jurisdiction or fundamentally prejudice the adverse party should not nullify a suit, and counsel's mistake should not ordinarily be visited upon the client.

Court orders

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  1. 1.The order of the High Court dated 23rd May 2008 allowing the respondent's application dated 16th June 2000 and striking out the appellants' suit is set aside and substituted with an order dismissing the said application with no order as to costs
  2. 2.The appellants' suit is reinstated
  3. 3.The appellants are granted leave to file and serve compliant verifying affidavit or affidavits within thirty (30) days
  4. 4.The appellants shall have the costs of this appeal

The bench

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

WK
majority
GK
majority
FA
majority
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Civil Procedure Act and Appellate Jurisdiction Act (not expressly cited in the judgment text provided)

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.

In the end result, we allow this appeal. The order of the High Court dated 23rd May, 2008 allowing the respondent’s application dated 16th June, 2000 and striking out the appellants’ suit is set aside and is substituted with an order dismissing the said application with no order as to costs. The appellants’ suit is ordered reinstated. The appellants are hereby granted leave to file and serve compliant verifying affidavit or affidavits within thirty (30) days of today. The appellants shall have the costs of this appeal.
p. 6Final orders - appeal allowed, suit reinstated
Rules of procedure are the hand maidens and not mistresses of justice. They should not be elevated to a fetish.
p. 5Procedural rules should not defeat substantive justice
The superior court however had a discretion. It had jurisdiction instead of striking out the plaint to make any other appropriate orders such as giving the plaintiffs another opportunity to comply with the rule.
p. 5Discretion to order compliance rather than striking out
A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it.
p. 6Courts should sustain rather than summarily dismiss suits

Issues in the judgment

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minor

The judgment inconsistently dates the respondent's application as '16th June, 2005' in the opening paragraph but as '16th June, 2000' in the closing orders.

minor

The judgment states the appeal was lodged against a ruling striking out the suit as against 38 appellants, but the coram appears as 'Luke Cheruiyot & 37 Others' while the body refers to 38 appellants and plaintiff No. 30.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2015] KECA 572 (KLR)", Case Analysis (2015). Civil Appeal No. 91 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/572/eng@2015-07-03

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