[2007] KEHC 3627 (KLR)
The court found that the defendant's application to strike out the plaint was frivolous. The omission in the verifying affidavit, specifically the failure to disclose the address, was deemed a minor defect that could be rectified and was not fatal to the suit. The court emphasized that technicalities should not be...
Source-derived case information.
- Citation
- [2007] KEHC 3627 (KLR)
- Parties
- Plaintiff: Apolina Muthon Waithunguri & Others; Defendant: Samuel Mwangi Kinuthia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 812 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed with costs to the plaintiff; suit to proceed to trial
- Legal Topics
- Striking Out of Plaint, Verifying Affidavit Requirements, Non Disclosure of Previous Suit, Rectification of Pleading Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Apolina Muthon Waithunguri & Others
Plaintiff
Samuel Mwangi Kinuthia
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the suit should be struck out for non-disclosure of a previous suit.
- 2 Whether the verifying affidavit's omission of address is a fatal defect warranting striking out the plaint.
- 3 Whether the omission in the verifying affidavit can be rectified without prejudicing the defendant.
Ratio Decidendi
The court found that the defendant's application to strike out the plaint was frivolous. The omission in the verifying affidavit, specifically the failure to disclose the address, was deemed a minor defect that could be rectified and was not fatal to the suit. The court emphasized that technicalities should not be used to defeat substantive justice, especially where the plaintiff had made attempts to set the matter for hearing. The application was viewed as an attempt to circumvent the progression of the suit to trial, contrary to the court's earlier directions for the parties to proceed to pre-trial. Accordingly, the application was dismissed with costs to the plaintiff, and the parties...
Court Disposition
application dismissed with costs to the plaintiff; suit to proceed to trial
Orders
- The application dated 5 March 2007 is dismissed with costs to the plaintiff/respondent.
- Parties to proceed to the main suit for hearing.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 812 of 2003
1. Land and Environmental Law Division
2. Subject of main suit – Land ownership declaration first
3. Application No.1 dated 21 February 2007
Seeking to dismiss suit for want of prosecution
ii) Court rejects applications after hearing directs parties to pre-trials under parties own supervision. Dates be taken in the registry.
4. New application No. 2
iii) Advocates for defendant files new application dated 5. 3.07 seeking of the striking out of the plaint on grounds that previous proceeding not disclosed
iv) That the verifying affidavit failed to disclose the address
5. Application opposed.
v) Though there is an omission the defect can be rectified
vi) Affidavit not fatally defective
6. Held:
1. Application dismissed
2. Parties to proceed to main suit
7. Case law: Microsoft Corporation v Mitsumi Computer Garage Ltd & Another
Milimani Hccc810/01 Ringera,J.
8. Advocates:
K. Mbuvi for K. Mbuvi & Co. Advocates for the plaintiff
M.T. Adala for M.T. Adala & Co. Advocates for the defendant
APOLINA MUTHON WAITHUNGURI & OTHERS.............PLAINTIFF
VERSUS
SAMUEL MWANGI KINUTHIA........................................DEFENDANT
RULING
1: Back ground to application of 5 March 2007
1: The main suit herein concerns trust. The plaintiff filed suit claiming that the defendants hold land in trust of them.
2. The defendant is alleged to have taken the whole land of Chania/Mataara/03 comprising of 10 acres.
3. It is clear that there are other related suit to this one but the same presumably having abated being Hccc 494/80.
4. On the 26 January 2007 the defendant filed an application seeking the dismissal of this suit. I heard the parties on the 20 February 2007 and gave them a ruling on the 21 February 2007. I declined to dismiss this suit on the grounds that the plaintiff attempted several times to set this matter for hearing but was never heard. I directed that the parties proceed to pre- trials and take dates in the registry for hearing.
5. Instead, the defendant applicant returned to court on 5 March 2007 with an application of 5 March 2007 and fixed a new application for hearing during the court vacation.
II Application 5 March 2007
6. By an application of 5 March 2007 defendant sought court orders that the whole suit be struck out on technicalities. The first, on none disclosure of existence of a former suit, the other on the verifying affidavit.
7. In reply the plaintiff/respondent claim the matter may be curable. The plaintiff/respondent asked that he be not punished for omissions made.
III: Finding
1. I refer to the case law of:
Microsoft CorporationV Mitsumi Compute r Garage Ltd & Another
Milimani Hccc810/01, Ringera J.
On verifying affidavit and would note that a minor omission is not fatal to the application.
I accordingly find the application is frivolous. I had requested parties to proceed to prepare for trial under their own supervision.
9. This was not done I would find the application before me is to circumvent this suit from proceeding to trial.
10. The application of 5 March 2007 be and is hereby dismissed with costs to the plaintiff/respondent.
Dated this 18th Day of June 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
K. Mbuvi for K. Mbuvi & Co. Advocates for the plaintiff
M.T. Adala for M.T. Adala & Co. Advocates for the defendant