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KadhiPartially AllowedNot stated in the judgment text

Hussein Abdalla Ateib v Josephine Mwikali Mwangangi [2015] KEKC 14 (KLR)

Kadhi's Court / Magistrates' Court, Nairobi
12 June 2015
1,564 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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A Kenyan court refused to kill a lawsuit over a defective verifying affidavit, striking out only the affidavit and giving the plaintiff seven days to fix it.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 23rd June 2014 and filed on 25th June 2014, accompanied by a verifying affidavit purportedly sworn by the plaintiff. The defendant entered appearance and, on 3rd November 2014, filed a notice of preliminary objection seeking that the plaint be struck out on two grounds: that the verifying affidavit was not attested or commissioned by a Commissioner for Oaths as required by section 5 of the Oaths and Statutory Declarations Act (Cap. 15), and that the suit was thereby incurably defective. The defendant relied on authorities including The Delphis Bank Ltd v. Asudi (K) Ltd and Bishop Gawo. The plaintiff filed no response but orally sought leave to amend the plaint. The court framed a single question: whether the plaint is liable to be struck out should the verifying affidavit be found faulty. The court agreed with the defendant that the verifying affidavit was faulty and could not stand. However, applying the discretionary approach in Microsoft v. Mitsumi and J.M. Mugo, and the principle that technicalities must be eschewed in favour of substantive justice, it declined to strike out the plaint. On 12th June 2015 the court struck out only the verifying affidavit, granted liberty to the plaintiff to amend the plaint and file a fresh compliant affidavit within 7 days, and made no order as to costs.

Questions the Court framed

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

  1. 1.Whether the plaint is liable to be struck out should the verifying affidavit be found to be faulty.

Key legal issues

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01

Whether a plaint must be struck out where its verifying affidavit is defective for want of attestation by a Commissioner for Oaths

Holding

The verifying affidavit was struck out, but the plaint survived; the plaintiff was granted liberty to amend and file a fresh compliant affidavit within 7 days.

Reasoning

The court accepted the affidavit was faulty, agreeing with the defendant. However, relying on the discretion recognised in the cited authorities and the principle that technicalities should not defeat substantive justice, it held a court is not barred from granting leave to amend to regularize a fault. The defect was thus curable, and only the affidavit was struck out.

p. 3

Legal principles established

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  • A defective verifying affidavit does not automatically doom the plaint; the court may strike out the affidavit and allow amendment in furtherance of substantive justice.
  • Technicalities should be eschewed in favour of substantive justice.

Court orders

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  1. 1.The plaintiff's verifying affidavit be and is hereby struck out of the record
  2. 2.Liberty granted to the plaintiff to amend the plaint and file and serve the defendant with a fresh compliant within 7 days of the giving of the order
  3. 3.No order as to costs

The bench

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

AH
A. I. HusseinKadhi II/RM
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction over the plaint; preliminary objection under Order VII rule 2 of the Civil Procedure Rules and section 5 of the Oaths and Statutory Declarations Act (Cap. 15)

Relief refused

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Defendant's prayer that the plaint dated 23rd June 2014 be struck out in its entirety

The court declined to strike out the suit, holding that technicalities should be eschewed and the plaintiff should be allowed to regularize the defect

p. 3

Costs

No order as to cost

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 premises, I decline to strike out the suit in its entirety but order that the verifying affidavit of the Plaintiff be and is hereby struck out of the record. I fully 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.
p. 3Final orders - disposition of preliminary objection
At all times therefore, technicalities should be eschewed and the determination to do substantial justice should remain the only option.
p. 3Substantive justice over technicality
It is trite as has been repeated various times that a court is obliged to assist an applicant who has a pleading which is capable of breathing life into an incompetent process.
p. 3Court's duty to salvage salvageable pleadings
No order as to cost
p. 3Costs

Issues in the judgment

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minor

The court simultaneously endorses the strict view of Rajput (defects under the Oaths and Statutory Declarations Act are not curable) while exercising discretion to allow the defect to be cured, without expressly reconciling the two positions.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hussein Abdalla Ateib v Josephine Mwikali Mwangangi [2015] KEKC 14 (KLR)", Case Analysis (2015). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2015/14/eng@2015-06-12

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