|Civil Suit 8 of 2008
|KENYA ANTI-CORRUPTION COMMISSION v JULIUS MWAMSAE, MOHAMED MAHFUDH SAAD, ISAAC MUNYI NJERU & KENNETH K. GITHII
|08 Apr 2011
|High Court at Mombasa
|Jackton Boma Ojwang
|KENYA ANTI-CORRUPTION COMMISSION v JULIUS MWAMSAE & 3 others  eKLR
|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
IN THE HIGH COURT OF KENYA
(Coram: Ojwang, J.)
CIVIL SUIT NO. 8 OF 2008
KENYA ANTI-CORRUPTION COMMISSION...................................................................PLAINTIFF
- VERSUS –
1. JULIUS MWAMSAE
2. MOHAMED MAHFUDH SAAD
3. ISAAC MUNYI NJERU.............................................................................................DEFENDANTS
4. KENNETH K. GITHII
The applicant herein strives to stop the plaintiff’s case by seeking, at this interlocutory stage, a striking out of the suit, as against 2nd defendant/applicant.
(i) that, in breach of Order VII, rule 3 (b), the verifying affidavit is not sworn by an officer of the plaintiff, but by a person employed as a process server, who would not have personal knowledge of the matters averred in the plaint;
(ii) that, in breach of Order VI, rule 8 (1), the plaint does not give particulars of fraud by 2nd defendant;
Mohamed Mahfudh Saad, the 2nd defendant, gives supporting evidence by his affidavit of 14th July, 2009, in which he deposes that he believes to be true his Advocate’s advice, that the plaint as filed, is “incurably defective and … in breach of the provisions of the Civil Procedure Act (Cap. 21, Laws of Kenya] and sections 39 (1) and 27 (b) of the Registered Land Act,” and moreover, does not comply with Order VII, rule 3 (b) of the Civil Procedure Rules. The deponent avers that the plaint, though attributing fraud to him, does not give any particulars of the alleged knowledge on his part. By the advice of the same Advocate, which the deponent believes to be true, it was not the deponent’s obligation to ascertain the circumstances under which 1st defendant came to be registered as proprietor of the suit property: and therefore, the plaint does not disclose a reasonable cause of action, and is an “abuse of [the] process of the Court.” The deponent avers that by s. 27 (b) of the Registered Land Act, upon the registration of the lease in his name, the leasehold, thenceforth, vested in him, and a certificate of lease was duly issued in his name.
Counsel for the applicant, in the submissions, contested the verifying affidavit annexed to the plaint. Counsel submitted that, by Order III, rule 2 (c) of the Civil Procedure Rules, the plaintiff as a corporate body could only have its plaint verified by an officer authorised under its seal; and, in counsel’s reckoning “the person making [the] verifying affidavit is not an officer.” Counsel still questioned the verifying affidavit for not having been filed together with the plaint. (Upon checking, however, I notice that the verifying affidavit is physically clipped to the plaint, and each bears the Court stamp showing the date 21st January, 2008.) On this point, counsel invoked a case authority: Bishop Joshua Gawo & Others v. Nairobi City Council & Others, Civil Application No. Nai 345 of 2000. Counsel also invoked the decision in Lucy Njoki Waithaka v. Industrial & Commercial Development Corporation, Nairobi HCCC No. 321 of 2001 (Ringera, J.) for the statement that:
On that basis, counsel urged that the verifying affidavit filed with the plaint, “is against [the] provisions of Order VII, Rule 3 (1) [of the Civil Procedure Rules]”; and he submitted that “[as] a process server, the deponent of the verifying affidavit would not have personal knowledge of the matters averred in the plaint.”
“The 2nd defendant was not concerned about the circumstances under which the 1st defendant was registered as proprietor of the property. He was dealing legally with 1st defendant when he bought the suit property for valuable consideration. Consequently, the suit property was rightfully and legally vested in 2nd defendant pursuant to section 27 (b) of the [Registered Land Act] when the lease between him and 1st defendant was registered at the Lands Registry.”
“A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing ….
The principle is well recognized, and there are many judicial decisions adopting it: Achkay Holdings Limited v. N.M. Shah, trading in the name & style, Braidwood College, Nairobi Civil Appeal No. 187 of 1994  eKLR; Bakari Ali Ogada & 245 Others v. Unilever Kenya Limited, Nairobi Civil Appeal No. 32 of 2008  eKLR; Nuru Chemist Limited & James Isaboke v. National Bank of Kenya, Nairobi Civil Appeal no. 219 of 2002  eKLR.
Counsel submitted that there was no legal basis to the contention made for the applicant, that the averments verifying the plaint ought to have been detailed out in some particular way: for if the applicant required further and better particulars of any aspect of the pleadings, then it was open to him to make a special request for the same; though he could also await the trial process to accord him a wide opportunity for cross-examination.
Learned counsel contested the prayer for striking out under Order VI, rule 13 (b) of the Civil Procedure Rules: although the applicant claims that the suit is an abuse of Court process, he has not shown that the suit is scandalous, frivolous or vexatious; and so it is not clear how the Court’s striking-out jurisdiction is being invoked in this respect; the plaintiff is not, in this regard, accorded a fair opportunity to defend against the claim.
“Provided that, except where a contrary intention appears, nothing contained in this Act shall be construed as permitting any dealing which is forbidden by the express provisions of any other written law, requiring the consent or approval of any authority to any dealing”.
Counsel submitted that there is plenty of evidence to justify this matter going on to trial; and any defects such as might be found in the pleadings, can be rectified by way of amendment.
I have already considered the technicalities which the applicant raised, regarding the quality of the verifying affidavit; from the facts, the deponent was indeed the right person to swear the affidavit, and so the complaint in this regard does not stand up. The evidence on file also shows that the verifying affidavit was correctly annexed to the plaint at the time of filing; and the complaint cannot be sustained.
Insofar as the plaintiff, a statutory body empowered to protect and retrieve public assets dishonestly alienated, has made a claim to the suit land on the basis of its statutory mandate, there is, ex facie, a serious cause of action asserted in the claim; and so the discretion of the Courts, which is to be exercised on merits, is from the beginning, set in favour of ensuring that a hearing takes place on the merits.
J. B. OJWANG