[2007] KEHC 1321 (KLR)
The court held that once leave to amend a chamber summons has been granted by a judge of concurrent jurisdiction, it is not open to the same court to entertain a preliminary objection challenging the exercise of that power. The only recourse for the aggrieved party is to appeal to the Court of Appeal. The court...
Source-derived case information.
- Citation
- [2007] KEHC 1321 (KLR)
- Parties
- Plaintiff: David Ngugi Mbuthia; Plaintiff: Textile Dye Stuff Limited; Defendant: Fina Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 419 of 2007
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Amendment of Pleadings, Preliminary Objection, Chamber Summons, Leave to Amend
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ngugi Mbuthia
Plaintiff
Textile Dye Stuff Limited
Plaintiff
Fina Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a chamber summons is a pleading capable of amendment under the Civil Procedure Act.
- 2 Whether a court of parallel jurisdiction can entertain a preliminary objection challenging leave granted to amend a chamber summons.
- 3 Whether the preliminary objection raised is competent.
Ratio Decidendi
The court held that once leave to amend a chamber summons has been granted by a judge of concurrent jurisdiction, it is not open to the same court to entertain a preliminary objection challenging the exercise of that power. The only recourse for the aggrieved party is to appeal to the Court of Appeal. The court found that the preliminary objection was therefore incompetent and dismissed it with costs. The court distinguished the authorities cited by the Respondent, noting that the circumstances in the present case were different because the amendment had already been effected pursuant to leave granted by the court.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the Applicant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 419 of 2007
DAVID NGUGI MBUTHIA ………………….…......……1ST PLAINTIFF
TEXTILE DYE STUFF LIMITED…….…....…..…......…2ND PLAINTIFF
VERSUS
FINA BANK LIMITED………………..……..…………… DEFENDANT
RULING
When the application dated 16th August, 2007, an amended chamber summons, was filed, the Respondent’s advocate filed a notice of preliminary objection on points of law in which four grounds of objection were raised. Mr. Chege, Counsel for the Respondent, abandoned ground 2 of the notice and argued the remaining three. The first ground raised is that the amended chamber summons is incurably defective. Secondly that the chamber summons is not a pleading as defined by section 2 of the Civil Procedure Act, and therefore it was incapable of being amended. Thirdly the amended chamber summons is incompetent.
Mr. Chege submitted that under Section 2 of Civil Procedure Act, chamber summons is not defined as a pleading. Counsel relied on CIVIL APPEAL NO. 61 OF 1999 BOARD OF GOVERNORS, NAIROBI SCHOOL VS JACKSON GETAH. In cited case the Court of Appeal held that an application under Order VI rule 13(1) of Civil Procedure Act, should be confined to plaints or defences or such modes prescribed for instituting suits and statements of defences. The Court of Appeal did not in that case say that chamber summons applications could not be amended at all. The Court of Appeal’s interpretation of what a pleading is was made in regard to applications made under Order VI rule 13(1) of Civil Procedure Act and it cannot be extended to include amendments of chamber summons.
Mr. Chege also relied on JACINTA WANJIRU MUIRURI VS JANE MWANGI & ANOTHER [2006] E KLR where Osiemo J, rules that a chamber summons is not a pleading and therefore ruled that it could not be amended.
Mr. Mwaniki for the Applicant drew the courts attention to the fact that leave to amend the instant chamber summons, was granted by Okwengu J, and that in the circumstances, the only step the Respondent could take to challenge the leave granted by this court was through an appeal in the Court of Appeal. He sought to distinguish MUIRURI CASE, Supra, and Osiemo J’s ruling therein, by submitting that unlike the cited case where Preliminary Objection was raised before an application to amend could be argued, an amendment had already been effected in the instant case.
I did not buy Mr. Chege’s argument that since leave by Okwengu J, was granted ex parte, it was open for him to raise the issue at this stage. In my humble view once leave was granted to the Applicant to amend the chamber summons by the court, this court, being of parallel jurisdiction as the one which granted leave, cannot entertain a preliminary objection challenging the exercise of the powers of the same court to grant leave. That avenue can only be pursued through an appeal to the Court of Appeal.
Having come to this conclusion I find that the Preliminary Objection raised herein is incompetent and the same is dismissed with costs.
Dated at Nairobi this 26th Day of October, 2007.
LESIIT, J.
JUDGE
Read, signed and delivered in the presence of:
Miss Njoroge for Chege for Respondent
N/A for Applicant
LESIIT, J.
JUDGE