Issue Number 1Whether the impugned verifying affidavit ought to be struck out/expunged and if so; whether the Amended Plaint ought to similarly struct out.
40.Learned counsel for the Defendant has submitted that pursuant to and by dint of the provisions of Order 4 Rule 2(1) of the Civil Procedure 2010, it is incumbent upon the Plaintiff to swear a verifying affidavit and cause same to be indorsed to the Plaint in respect of the designated matter.
41.Furthermore, learned counsel for the Defendant has added that the clear provisions of the law are to the effect that the verifying affidavit must be sworn by the Plaintiff and not any other third party or at all.
42.Nevertheless, in respect of the instant matter, Learned counsel has submitted that it transpired and became apparent that the impugned verifying affidavit which was attached to the amended Plaint dated the 23rd January 2023; was not sworn by the Plaintiff herein. Instructively, the fact that the impugned verifying affidavit was sworn by a third party and not the Plaintiff, was admitted and acknowledged by the Plaintiff himself.
43.Other then the position ventilated by and on behalf of the Defendant herein, it is important to observe that even the Plaintiff himself has conceded and admitted that the impugned verifying affidavit was never sworn by himself and that for good measure the impugned verifying affidavit was sworn by someone/somebody procured by his advocate to copy his signature from his previous documents.
44.For the avoidance of doubt and to put the Plaintiff’s position into perspective, it is perhaps important to reproduce the contents of paragraphs 5, 6 and 7 of the submissions filed by and on behalf of the Plaintiff. In this respect, the named paragraphs are reproduced as hereunder;
45.From the foregoing observations, three things become evident and apparent and are thus worthy of due interrogation and determination by the Honourable Court.
46.Firstly, there is no gainsaying that the impugned verifying affidavit was never signed nor sworn by the Plaintiff. In this regard, the impugned verifying affidavit, which is sought to be struck out and/or expunged, clearly offends the provisions of Order 4 Rule 2(1) of the Civil Procedure Rules, 2010; which makes it mandatory that the requisite verifying affidavit must be signed by the Plaintiff and not otherwise.
47.Consequently and to the extent that the Plaintiff admits that the impugned verifying affidavit was not sworn by him and in any event; same was disowned by him; the impugned verifying affidavit is therefore illegal, invalid and void.
48.Certainly, the impugned verifying affidavit, which I have found to be illegal, invalid and void is one which must be struck out and expunged, if the integrity of court proceedings, which are solemn in nature; and by extension the rule of law, are to be upheld.
49.Secondly, it is not lost on this court that at the onset of the proceedings which were taken before the court on the 25th May 2023, the Plaintiff herein took oath and/or was sworn before the court and in the course of his testimony before the court adopted the contents of the amended Plaint dated the 23rd January 2023; and the verifying affidavit indorsed thereto and in particular informed the court that the contents of the two named documents were true and correct.
50.Pursuant to and as a result of the intimation by the Plaintiff that the contents of his amended Plaint and the attached verifying affidavit were true, the court adopted and constituted the named documents as part of the Plaintiff’s evidence in chief, which was certainly taken under oath.
51.Be that as it may, in the course of cross examination, the Plaintiff herein made a complete about turn and said that the signature contained on the verifying affidavit, (which he had hitherto admitted to be his), was not his. Furthermore, the Plaintiff contended that he did not sign the verifying affidavit in question.
52.Arising from the position taken by the Plaintiff, it became apparent and evident that a cognizable offense had been committed and perhaps, was in the process of being committed and in this regard, the court made an order that the impugned verifying affidavit be referred to the directorate of criminal investigations for due investigations and where appropriate, be prosecuted.
53.Thirdly, the Plaintiff himself concedes that arising from the orders of the court, pertaining to and/or concerning the impugned verifying affidavit, the Directorate of criminal investigations has commenced investigations attendant to the said verifying affidavit.
54.Arising from the totality of the foregoing, the question that I must now deal with is whether the striking out of the verifying affidavit should culminate into the striking out of the suit in question or whether this court should exercise mercy, sympathy, leniency and/or discretion and afford the Plaintiff an opportunity to remedy the situation.
55.Sadly and taking into account the events that transpired before the court on the 25th May 2023, and in particular, the conscious and deliberate falsehoods that was perpetrated before the court, it would be unconscienable for this court to exercise discretion for allowing the Plaintiff to have a second bite on the issue pertaining to the verifying affidavit, which clearly falls within the purview of Section 113 of the Penal Code, Chapter 63 of the Laws of Kenya.
56.Consequently and to my mind, having struck out and expunged the verifying affidavit and the amended Plaint not being duly verified, as required vide the known provisions of Order 4 Rule 2 (1) of the Civil Procedure Rules, 2010; I come to the conclusion that the amended Plaint in question is incompetent and thus deserves to be struck out.
57.In amplification of the foregoing position, I adopt and reiterate the dictum in the case of Oriental Commercial Bank Limited v Shashikant Chandubhai Patel  eKLR citing the case of The Delphis Bank Limited v. Asudi (K) Limited & Another, HCCC No. 82 of 2003; wherein the learned Judge considered the issue of unavailability of a Verifying Affidavit and the consequences for the Plaint as filed by stating that: -
58.In a nutshell, the amended Plaint dated the 23rd January 20239; be and is similarly struck out and expunged from the record of the court.
Issue Number 2Whether the Honorable court ought to exercise discretion in favor of the Plaintiff and essentially; to allow the Plaintiff to substitute the impugned verifying affidavit, taking into account the obtaining circumstances.
59.Despite the fact that this court has come to the conclusion that the amended Plaint dated the 23rd January 2023 merits being struck out and has indeed proceeded to and struck out same, it is still imperative that the court deals with the second issue herein.
60.I say it is imperative to deal with the second issues herein because it raises a pertinent and poignant question as to whether a court of law can exercise discretion to sanction, countenance or better still; sanitizing the commission of a criminal offense and/or an illegality.
61.To start with, it is worthy to recall and reiterate that the Plaintiff herein had initially informed the court under oath that he is the one who signed and swore the impugned verifying affidavit and thereafter same implored the court to adopt the verifying affidavit as part of his Evidence in chief.
62.Nevertheless, during the cross examination, the Plaintiff created and took a diametrically opposed position and in fact disowned the signature that was affixed at the foot of the impugned verifying affidavit. Instructively, the Plaintiff added that he did not sign the verifying affidavit.
63.Arising from the subsequent evidence give by the Plaintiff and which position has been replayed vide the written submissions filed on behalf of the Plaintiff herein; the court made an explicit order that there was evident perjury in terms of Section 108 of the Penal Code Chapter 63 Laws of Kenya.
64.Despite the foregoing orders and directions by this court, the Plaintiff is now back and in inviting the court to exercise judicial and equitable discretion to allow him to supplant the previous verifying affidavit which was found to amount to perjury, with a new verifying affidavit.
65.Surely, the question that the court must grapple with; is whether discretion of the court can be exercised in such a scenario. Fortunately for me, I beg to reiterate that the discretion of the court can only be invoked and exercised where the acts and/or omissions sought to be remedied arose from an accident, inadvertence, excusable mistake or error. See the dictum of the Court of Appeal in the case of Phillip Keipto Chemwolo and Another versus Augustine Kubende and Another (1986) eklr.
66.To the contrary, the discretion of the court cannot be exercised in a clear case of an illegality or where the culprit is keen to defile and/or defraud the pure/clean Provisions of the law; and thereby bring the integrity of court proceedings and by extension the Rule of law, to disrepute.
67.If the latter situation, in terms of the immediate paragraph, were to attract exercise of judicial discretion; then the entire edifice upon which the Rule of Law and General Administration of Justice is premised, would be brought down and left crumbling. Essentially, a pandora box shall have been opened and the Rule of the jungle, will no doubt, take the place/ position of civility.
68.Fundamentally, it is important to bring to the attention of all and sundry; that one must not indulge in commission of (sic) cognizable offense and better still; that when such acts/conducts are done same would not be countenanced, nay, pardoned by the courts; by exercise of Judicial discretion to remedy the illegality; once same becomes evident or is pointed out by the adverse party.
69.At this juncture and without belaboring the fact that court proceedings are very solemn proceedings and must therefore be given the requisite respect and treated with dignity, it is imperative to reiterate the holding of the Supreme Court in the case of Odinga & 16 others versus Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated))  KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment), where the court stated thus;
70.Surely, by making the false affirmation or declaration before the court that the impugned verifying affidavit was sworn by him and thereafter disowning the same affidavit, the Plaintiff herein was indeed abusing, nay, interfering with the proper administration of justice, which cannot be countenanced and/ or pardoned by a conscientious court of law.
71.To my mind, if I were to allow the application by and at the instance of the Plaintiff herein, I would certainly, be sanctioning and/or countenancing the commission of an illegality and thereby bringing the Rule of Law into disrepute; which would be contrary to inter-alia, the Provisions of Article 10(2) of the constitution, 2010.
72.Consequently and arising from the foregoing analysis, I am not disposed to dignify the Plaintiff herein with exercise of discretion and thereby adulterate the Pure stream of Justice.
73.For the umpteenth time, I beg to repeat and reiterate that he who seeks Equity; and for good measure, Discretion is Equity; must come to Court, with Clean Hands and not otherwise.