[2008] KEHC 3724 (KLR)
The court found that there was no new or important matter or evidence to justify review of the order striking out the suits of the 8 plaintiffs who failed to file verifying affidavits. However, the court held that the 4th plaintiff's suit was struck out for failure to plead particulars of fraud, a defect that could...
Source-derived case information.
- Citation
- [2008] KEHC 3724 (KLR)
- Parties
- Plaintiff: Augustine Koskei & 8 Others; Defendant: The Commissioner of Lands; Defendant: The Attorney General; Defendant: Pentacostal Evangelism Fellowship of Africa
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 63 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Review of Order Striking Out Suit
- Outcome
- Application for review allowed in part; suit by 4th plaintiff reinstated; suits by other plaintiffs remain struck out.
- Legal Topics
- Review of Court Orders, Striking Out of Pleadings, Verifying Affidavit Requirements, Preliminary Objection, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Koskei & 8 Others
Plaintiff
The Commissioner of Lands
Defendant
The Attorney General
Defendant
Pentacostal Evangelism Fellowship of Africa
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Order Striking Out Suit
Legal Issues
- 1 Whether the plaintiffs have established grounds for review of the order striking out their suit.
- 2 Whether the absence of verifying affidavits by the plaintiffs justified striking out their suit.
- 3 Whether the 4th plaintiff's suit should have been struck out for failure to plead particulars of fraud.
Ratio Decidendi
The court found that there was no new or important matter or evidence to justify review of the order striking out the suits of the 8 plaintiffs who failed to file verifying affidavits. However, the court held that the 4th plaintiff's suit was struck out for failure to plead particulars of fraud, a defect that could have been cured by amendment. The court further held that the preliminary objection should not have been raised during the hearing of an application for interim injunctive orders, as this denied the 4th plaintiff an opportunity to respond or amend the pleadings. In the interest of justice and fairness, the court reviewed and varied its earlier order, reinstating the 4th...
Court Disposition
Application for review allowed in part; suit by 4th plaintiff reinstated; suits by other plaintiffs remain struck out.
Orders
- The orders made on 8th November 2002 are reviewed and varied to reinstate the suit by the 4th plaintiff as against the defendants.
- The application dated 20th December 2001 is not reinstated as its supporting affidavit was sworn by the 1st plaintiff whose suit remains struck out.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case 63 of 2001
AUGUSTINE KOSKEI & 8 OTHERS……................................…….PLAINITFFS
=VERSUS=
THE COMMISSIONER OF LANDS
THE ATTORNEY GENERAL
PENTACOSTAL EVANGELISM FELLOWSHIP OF AFRICA....DEFENDANTS
R U L I N G
This is an application by the Plaintiffs seeking review of the Order by this Court given on 8th November,2002 striking out the suit herein.
The suit by Plaintiffs No. 1,2,3,5,6,7 and 9 was struck out on the ground that none of them had sworn a verifying Affidavit. The verifying affidavits on record was sworn by the 4th Plaintiff who did not depose that he had been authorized to make the verifying affidavits by the other co-Plaintiffs or that he was making the affidavit on their behalf.
The 4th Plaintiff’s cause of action/Suit survived being struck out on the said ground however; the Court still struck out the 4th Plaintiff’s suit since he had not pleaded particulars of alleged fraud in the Plaint.
I have considered the application herein, the supporting affidavits, Grounds of objection and Submissions by Counsel.
The Honourable Judge considered the Preliminary Objection regarding the 8 Plaintiffs and their failure to make verifying affidavit. The Judge gave a reasoned ruling and the Plaintiffs filed a Notice of Appeal which is on record. This Court does not find that there is any discovery of any new and important matter or evidence by the 8 Plaintiffs to justify the review of the order striking out their suit. I also see no other sufficient reason. The Court exercised its discretion and upon giving a reasoned ruling made the decision. I cannot sit on appeal against the said decision. If the 8 Plaintiffs are aggrieved, then they are at liberty to prosecute their appeal.
The 4th Plaintiff’s suit was struck out for a different reason namely, that he had not pleaded and set out particulars of fraud. It is my view that a decision to strike out a Plaint is a serious matter and ought to be made upon consideration as to whether an amendment of the Plaint can cure the omissions or offending parts of the pleading. In this case, an amendment of the pleadings could easily have cured the lack of particulars.
In any event, the First Defendant took up the matter by way of a Preliminary Objection on a point of law. With respect, I think that they should have filed a substantive application or raised the matter at the trial. In my view, it was not right for the Preliminary Objection to be taken during the hearing of an application for Interim Injunctive Orders. This has denied the 4th Plaintiff the opportunity to effectively respond or make amends.
The foregoing is sufficient cause for this Court to review its orders. In the interest of justice and fairness, I do hereby review and Vary the Orders made on 8th November 2002 and reinstate the suit by the 4th Plaintiff as against the Defendants. I am unable to reinstate the application dated 20th December 2001 to enable him prosecute the same, since the supporting affidavit thereto was sworn by the 1st Plaintiff whose suit remains struck out.
Costs shall be in the course.
DATED AND DELIVERED AT ELDORET ON THIS 6TH DAY OF FEBRUARY, 2008.
M.K. IBRAHIM,
JUDGE.