[2020] KEHC 4079 (KLR)
The court determined that the issues raised in the originating summons and the opposition thereto involved contested facts that could not be resolved solely on affidavit evidence. In accordance with Order 37 rule 19 of the Civil Procedure Rules, the court exercised its discretion to direct that the proceedings...
Source-derived case information.
- Citation
- [2020] KEHC 4079 (KLR)
- Parties
- Plaintiff: Aun Jiwa; Plaintiff: Rosemin Nazerali Jiwa; Defendant: Yusuf Jiwa; Defendant: Naushad Jiwa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 71 of 2017
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Directions for Hearing
- Outcome
- Proceedings to continue as if commenced by plaint; directions issued for further pleadings and hearing.
- Judges
- DO Ogembo
- Legal Topics
- Originating Summons, Conversion to Plaint, Order 37, Order 11, Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aun Jiwa
Plaintiff
Rosemin Nazerali Jiwa
Plaintiff
Yusuf Jiwa
Defendant
Naushad Jiwa
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Directions for Hearing
Legal Issues
- 1 Whether the issues raised in the originating summons require viva voce evidence for determination.
- 2 Whether the proceedings should continue as if commenced by plaint under Order 37 rule 19.
Ratio Decidendi
The court determined that the issues raised in the originating summons and the opposition thereto involved contested facts that could not be resolved solely on affidavit evidence. In accordance with Order 37 rule 19 of the Civil Procedure Rules, the court exercised its discretion to direct that the proceedings continue as if commenced by plaint. This would allow for the calling of viva voce evidence and ensure a fair determination of the disputed matters. The court further directed that all affidavits filed would stand as pleadings and granted liberty to the parties to file witness statements or supplementary affidavits within 30 days.
Court Disposition
Proceedings to continue as if commenced by plaint; directions issued for further pleadings and hearing.
Orders
- The proceedings herein shall continue as if the cause had been begun by filing a plaint.
- All affidavits filed shall stand as pleadings.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 71 OF 2017
1. AUN JIWA
2. ROSEMIN NAZERALI JIWA....................................................PLAINTIFFS
VERSUS
1. YUSUF JIWA
2. NAUSHAD JIWA......................................................................DEFENDANTS
RULING
1. On 17/8/2018, parties appeared in this matter and informed the court that they had already filed submission to the Originating Summons herein dated 14/7/2017 and that they were ready to take a date for the Judgment. The court subsequently reserved the matter for Judgment on 26/10/2018. However, the file was inadvertently misplaced inside another file and could not be traced for some time.
2. Upon the file being traced, I have looked at the Originating Summons, the opposition to it and also the Preliminary Objection by the Respondents dated 24/8/2017.
3. I have also noted allegations that there is a related Originating Summons ongoing in another court.
4. I have carefully considered the Originating Summons before the court. It is my view that matters raised in the Originating Summons and in opposition to it require viva voce evidence to establish one way or the other. I am therefore of the view that the matter should proceed by way of a plaint under Order 37 rule 9 (1) – (4) which states:
“Order 37 rule 19 (1) - (4)
(1) Where, on an originating summons under this
Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.
(2) Where the court makes an order under subrule (1), Order 11 shall apply.
(3) This rule applies notwithstanding that the cause could not have been begun by filing a plaint.
(4) Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an order made under subrule (1).
5. I therefore, pursuant to the foregoing, make the following directions:
(i) The proceedings herein shall continue as if the cause had been begun by filing a plaint.
(ii) All affidavits filed shall stand as pleadings.
(iii) Parties shall be at liberty to file witness statements or further supplementary affidavits within 30 days.
(iv) Mention 24/9/2020.
Dated, Signed and Delivered at Mombasa this 27th day of July, 2020.
E. K. OGOLA
JUDGE
Ruling delivered via MS Teams in the presence of:
Ms. Azei holding brief Adhoch for Applicant
Mr. Kaunda Court Assistant