[2001] KEHC 593 (KLR)
The court found that the applicant, by introducing matters of fact regarding the execution of a decree in Busia SRM CCC NO. 259 of 1999, contravened Order VI Rule 13(2) of the Civil Procedure Rules, which prohibits the introduction of evidence in applications to strike out pleadings on the ground that they disclose...
Source-derived case information.
- Citation
- [2001] KEHC 593 (KLR)
- Parties
- Plaintiff: Centurion Contractors Engineering Building Ltd.; Defendant: Border Service Station; Defendant: Manuel Otiangala Ominde t/a Kuronya Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1876 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application struck out with costs
- Judges
- T Mbaluto
- Legal Topics
- Striking Out Pleadings, Reasonable Cause of Action, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Centurion Contractors Engineering Building Ltd.
Plaintiff
Border Service Station
Defendant
Manuel Otiangala Ominde t/a Kuronya Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a reasonable cause of action.
- 2 Whether the suit is barred by Section 34 of the Civil Procedure Act regarding execution of decrees.
- 3 Whether the suit is barred by Section 6 of the Judicature Act.
Ratio Decidendi
The court found that the applicant, by introducing matters of fact regarding the execution of a decree in Busia SRM CCC NO. 259 of 1999, contravened Order VI Rule 13(2) of the Civil Procedure Rules, which prohibits the introduction of evidence in applications to strike out pleadings on the ground that they disclose no reasonable cause of action. As a result, the application was fatally defective and could not succeed. The court therefore struck out the application with costs.
Court Disposition
application struck out with costs
Orders
- The application to strike out the plaint is struck out with costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1876 OF 2000
CENTURION CONTRACTORS ENGINEERING BUILDING LTD. ………………………... PLAINTIFF VERSUS BORDER SERVICE STATION ……………………... 1ST DEFENDANT MANUEL OTIANGALA OMINDE T/A KURONYA AUCTIONEERS …………………….… 2ND DEFENDANT
RULING
This is an application under O. VI Rule 13 (1) (a) of the Civil Procedure Rules to strike out the plaint filed herein by the plaintiff on ground that it discloses no reasonable cause of action. In addition to the foregoing ground, the applicant further states in the body of the application:- “1. That the instant suit as drawn and filed is barred by the express provisions of Section 34 of the Civil Procedure Act in that the issue of unlawful attachment as alleged by the plaintiff are matters that arise out of execution of the Decree in Busia SRM CCC NO. 259 of 1999 and that the same cannot form a fresh cause of action capable of being litigated upon in a separate and distinct suit.
2. That the suit is expressly barred by the express provisions of section 6 of the Judicature Act, Cap 8 of the Laws of Kenya.
3. That the plaint offends the mandatory provisions of Order VII Rule 1(i) (e) and (2) of the Civil Procedure Rules as amended by Legal Notice No. 36 of 5th May, 2000. ” In my view, by stating that:-
“the issue of unlawful attachment as alleged …. are matters that arise out of execution of the decree in Busia SRM CCC NO. 259 of 1999”,
the applicant has introduced into the application matters of fact which are expressly barred by O. VI Rule 13(2) of the Civil Procedure Rules. For that reason the application is fatally defective and cannot possibly succeed. It is accordingly struck out with costs.
Dated at Nairobi this 16th day of March, 2001.
T. MBALUTO JUDGE