Case ID:185476

Ethics and Anti-Corruption Commission v Peter Mareteh Muginga & another; Stanley Thirima & 3 others (Interested Parties) [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 38 of 2018

Parties:

Ethics and Anti-Corruption Commission v Peter Mareteh Muginga & Wilson Gachanja; Stanley Thirima, Stephen Michuki Kiunga, Theresia Kiunga & Rajesh Valji Hirani (Interested Parties)

Date Delivered:

10 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Ethics and Anti-Corruption Commission v Peter Mareteh Muginga & another; Stanley Thirima & 3 others (Interested Parties) [2021] eKLR

Advocates:

Miss Rimita for the 1st interested party

Kiogora Arithi for 1st defendant

Mukanguru for 1st defendant

Court Division:

Environment and Land

County:

Meru

Advocates:

Miss Rimita for the 1st interested party

Kiogora Arithi for 1st defendant

Mukanguru for 1st defendant

History Advocates:

One party or some parties represented

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC CASE NO. 38 OF 2018

ETHICS AND ANTI-CORRUPTION COMMISSION.................PLAINTIFF

VERSUS

PETER MARETEH MUGINGA..........................................1

ST

DEFENDANT

WILSON GACHANJA..........................................................2

ND

DEFENDANT

AND

STANLEY THIRIMA............................................1

ST

INTERESTED PARTY

STEPHEN MICHUKI KIUNGA &

THERESIA KIUNGA...........................................2

ND

INTERESTED PARTY

RAJESH VALJI HIRANI....................................3

RD

INTERESTED PARTY

RULING

1. The 1

st

interested party objects to both the amended plaint and its verifying affidavit sworn on

13.9.2019

as defective and bad in law.

BACKGROUND

2. Following the filing and service of the amended plaint, the 1

st

interested party filed his list of witnesses and witnesses statement dated

12.3.3019

on top of the defence dated

29.3.2018

. The 1

st

defendant also filed a list of witnesses and statements dated

14.3.2019.

The 3

rd

interested party also filed a statement of defence dated

12.2.2019

.

3. Further the 1

st

interested party filed a case summary dated

10.2.2020

together with issues for determination and pretrial questionnaires. Parties were ordered to file paginated bundles. The plaintiff complied on

16.7.2020

, the 1

st

defendant on

11.8.2020

but the 1

st

and 3

rd

interested parties are yet to comply.

4. As can be seen from the foregoing the 1

st

interested party and by extension the rest of the parties have not been prejudiced at all by the alleged verifying affidavit.

5. The 1

st

interested is objecting to the words amended verifying affidavit, which is merely objecting to the form but not on the substance.

6. The law governing affidavits is the

Oaths and Statutory Declaration Act Cap 15 Laws of Kenya

and

Order 19 of the Civil Procedure Rules.

7. Order 19 Rule 7 grants the court discretion to receive an affidavit notwithstanding its defect on misdescription, irregularity or any other technicality.

8.

Order 4 Rule (1) (1) (f)

of the

Civil Procedure Rules

requires a plaint be accompanied by a verifying affidavit which as per

Order 4 rule (2)

verifies the correctness and the contents of the plaint.

9. I have looked at the amended plaint together with the

amended

verifying affidavit sworn by

David Naibei Sangula

on

13.3.2019

. It is true the same bears the words amended verifying affidavit and in the view of Mr. Wambua an affidavit cannot be amended in law. The question is whether such a defect is curable under Order 19 rule 7. Put another way is whether the said irregularity goes to the root of a plaint.

10. In

Gideon Sitelu Konchella –vs- Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR

the Supreme Court held an affidavit which is unsigned, undated and commissioned could be cured by the court, while in

Premchand Raichard & Another Ltd. –vs- Quarry Services and Others [1969] E.A the court

held matters of evidential burden in an affidavit go to the essential value of the affidavit hence are not curable.

11. In

Maureen Nyambura Ngigi Warui –vs- Board of Directors Kenya Power & Lighting Co. Ltd & 2 Others [2020] eKLR

the court held commissioning an affidavit by the advocate who drew it was curable under

Section 4 of the Oaths and Statutory Declaration Act Cap 15 Laws of Kenya

, in

Francis A. Mbalanya –vs- Cecilia N. Waema [2017] eKLR,

the court allowed a supplementary affidavit to be filed after it held the same fatally defective.

12. So what is coming out from the above authorities is that an error in a verifying affidavit does not always lead to striking out the plaint as the defect is curable through filing another affidavit.

13. In the instant case, Mr. Wambua is of the view there can be no amendment of an affidavit. In

Peeraj General Trading & Contracting Co. Ltd, Kenya & Another –vs- Mumias Sugar Co. Ltd. [2016] eKLR

the court was called upon to strike out the plaintiff’s plaint accompanied by undated verifying affidavit which was not in compliance with

Order 4 rule 1 (1) (f) and Rule 2

. The court declined to strike out the verifying affidavit for want of form.

14. On the issue of whether an affidavit can be amended. In

David Jonathan Grantham & Another –vs- National Social Security Fund [2007] eKLR

the plaintiff had sought leave to file an amended plaint and an amended verifying affidavit under

Order VIA rules 3, 5 and 8, Order VII rule 2 Order XVIII – Rule 1, 4 and 7

of the

Civil Procedure Rules

and

Section 3A

of the

Civil Procedure Act.

15. The court quoting Njagi J stated

“The plaint and the verifying affidavit are entirely different documents altogether and leave to amend the plaint does not incorporate leave to amend the verifying affidavit. The court went ahead to hold the view that a verifying affidavit was not covered by Section 35 of the Advocates Act since verifying affidavits were introduced by LN 36/2000. The court held by granting leave to amend a plaint, the verifying affidavit by necessity needed to be amended.”

The court however gave the plaintiff leave to file a compliant verifying affidavit to cover the amendments in the further amended plaint.

16. In

Teclah Jepkirui Wilson Tuwei (Administrators of the Estate of the late Malakweu Arap Cheruiyot –vs- Kimaiyo Chirchir [2021] eKLR

the court granted leave to file and serve a verifying affidavit in support of an amended counterclaim which had been filed contrary to

Order 7 rule 5.

17. Given the foregoing case law, I am inclined therefore to find the defect herein is not fatal to the plaint. The plaintiff is hereby granted leave to rectify the defect within 7 days from the date hereof. Parties are ordered to comply with

Order 11

and set down the matter for hearing

within 45 days

from the date hereof.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 10

TH

DAY OF NOVEMBER, 2021

In presence of:

Miss Rimita for the 1

st

interested party

Kiogora Arithi for 1

st

defendant

Mukanguru for 1

st

defendant

HON. C.K. NZILI

ELC JUDGE