[2004] KEHC 1449 (KLR)
The court held that the defendant's application to strike out the suit was not properly before the court, as it was an amended application filed without leave after the original application had been dismissed for non-attendance. The court emphasized that applications to strike out must be in writing and duly filed,...
Source-derived case information.
- Citation
- [2004] KEHC 1449 (KLR)
- Parties
- Plaintiff: Blasio Omondi; Defendant: Eliza Wairimu Chege
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 558 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Application to Strike Out Suit
- Outcome
- Application struck out; no order as to costs.
- Legal Topics
- Summons to Enter Appearance, Preliminary Objection, Authority of Next Friend, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Blasio Omondi
Plaintiff
Eliza Wairimu Chege
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Application to Strike Out Suit
Legal Issues
- 1 Whether the summons to enter appearance was issued irregularly under Order V rule 1 of the Civil Procedure Rules.
- 2 Whether the absence of a letter of authority by the next friend under Order 31 rule 1 of the Civil Procedure Rules invalidates the suit.
- 3 Whether an application to strike out can be made orally or must be in writing and duly filed.
Ratio Decidendi
The court held that the defendant's application to strike out the suit was not properly before the court, as it was an amended application filed without leave after the original application had been dismissed for non-attendance. The court emphasized that applications to strike out must be in writing and duly filed, and cannot be made orally. Since the application was not properly before the court and the defendant failed to bring material facts to the court's attention, the application was struck out. The court also noted that the issue of the summons was functus officio, and the absence of a letter of authority by the next friend could not be raised in this manner.
Court Disposition
Application struck out; no order as to costs.
Orders
- The defendant's application is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 558 OF 2001
BLASIO OMONDI ……………………………………. PLAINTIFF
VERSUS
ELIZA WAIRIMU CHEGE ……………………….. DEFENDANT
Summary Notes:
1) Civil practice and Procedure
2) Application for prayer of:-
a) Dismissal of suit due to the issuance irregularly of summons to enter appearance.
b) Application (dated 2. 8.03 and filed 14. 8.03) dismissed by G.B.M.Kariuki J. on 29. 10. 03 for non-attendance of parties.
3) The advocate for defendant unaware of dismissal amends the application of 24. 5.04
4) The issue before court was that of order 31 r 1 CPR – authority to sue by next of friend
5) Held
6) i) The issue of summons was functus officio ii) Order 31 r 1 CPR.
The application for striking out has to be in writing and duly filed.
7) Case law Kedowa Saw Mills Ltd & Another v Dina Mogaka Ombiro CA 163 of 1987
8) Advocates:-
S.N. Wachira Advocate for the plaintiff
P.M. Kimani Advocate for the defendant
RULING
The advocate for the defendant wished to raise an objection to this suit when the matter came up for hearing on the 4. 5.02 on two points.
The first point is:-
“i) Whether the summons to enter appearance was issued irregularly (order Vr1 CPR) and
ii) Whether the absence of the letter of authority by the next of friend (under order 31 r 1 CPR) Invalidates a suit”.
Parties were given time for the defendant to file a formal application and preparation on the submissions
On 25. 5.04 when the advocate argued his application on these two points and completed, the plaintiff said the defendants application had infact been dismissed by Kariuki G.B.M.J on the 29. 10. 03. Thus the original application of 7. 8.03 and filed 14. 8.03 having been dismissed could not in effect be awarded. I was under the impression that a new application would be filed. Instead the applicant/defendant had filed an amended application without leave to the court.
Can I treat this matter as a Preliminary Objection? Under order V r 32 CR and Order 31 r 2(1) CPR the application has to be in writing and duly filed.
The same cannot be orally made.
The court on its own motion after 24 months may struck out a suit. The circumstances of this case is different.
I hereby struck out the application before me with no orders as to costs as the defendant made no reply to the same nor bring it to the attention of court material facts.
Dated this 2nd day of June 2004 at Nairobi.
M.A. ANG’AWA
JUDGE
Wetangula & Co. Advocates for the plaintiff
Waruhiu & Gathuru advocates for the defendant