[2007] KEHC 622 (KLR)
The court held that although the applicant filed a further replying affidavit in response to grounds of opposition rather than a replying affidavit as directed, the affidavit would not be expunged from the record. The applicant was under the impression that replying to the grounds of opposition was sufficient. The...
Source-derived case information.
- Citation
- [2007] KEHC 622 (KLR)
- Parties
- Plaintiff: Edward K. Kimuhu; Plaintiff: Georg E Murua Muinania; Plaintiff: Peter Ndonye Ngugi; Plaintiff: John Gthunga; Plaintiff: Jane Nduta Muriuki; Plaintiff: Monica Wangechi; Plaintiff: Lydia Wanjiru Kangethe; Plaintiff: Edith Gathoni Kariuki; Plaintiff: John Ngunjiri Waigwa; Plaintiff: Isaka Kimani; Plaintiff: John Kimoni Kinyenje; Plaintiff: Mercy Muthoni; Plaintiff: Mary Wairimu Kamiri; Plaintiff: Douglas Githiaka Mbugua; Plaintiff: Mercy Nyamburua Karanja; Plaintiff: Grace Wambui Mburu; Plaintiff: Laban Gichaana Njoroge; Plaintiff: Stephen Ndungu Ngure; Defendant: Weru wa Muthurwa Investments Co. Ltd; Defendant: Thika River Estate Ltd; Defendant: P. Mburu Ngugi, Ng’anga Nyoike Hosea, M. Mwika t/a Karagita Self Help Mixed Group; Defendant: Chief Land Registrar
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1335 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Expunge Affidavit
- Outcome
- Application to expunge affidavit dismissed; leave granted to respondents to file further affidavit.
- Legal Topics
- Affidavit Striking Out, Replying Affidavit, Grounds of Opposition, Leave to File Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward K. Kimuhu
Plaintiff
Georg E Murua Muinania
Plaintiff
Peter Ndonye Ngugi
Plaintiff
John Gthunga
Plaintiff
Jane Nduta Muriuki
Plaintiff
Monica Wangechi
Plaintiff
Lydia Wanjiru Kangethe
Plaintiff
Edith Gathoni Kariuki
Plaintiff
John Ngunjiri Waigwa
Plaintiff
Isaka Kimani
Plaintiff
John Kimoni Kinyenje
Plaintiff
Mercy Muthoni
Plaintiff
Mary Wairimu Kamiri
Plaintiff
Douglas Githiaka Mbugua
Plaintiff
Mercy Nyamburua Karanja
Plaintiff
Grace Wambui Mburu
Plaintiff
Laban Gichaana Njoroge
Plaintiff
Stephen Ndungu Ngure
Plaintiff
Weru wa Muthurwa Investments Co. Ltd
Defendant
Thika River Estate Ltd
Defendant
P. Mburu Ngugi, Ng’anga Nyoike Hosea, M. Mwika t/a Karagita Self Help Mixed Group
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Civil Case / Ruling on Application to Expunge Affidavit
Legal Issues
- 1 Whether a replying affidavit filed in response to grounds of opposition should be expunged from the record.
- 2 Whether the respondents should be granted leave to file a further affidavit.
Ratio Decidendi
The court held that although the applicant filed a further replying affidavit in response to grounds of opposition rather than a replying affidavit as directed, the affidavit would not be expunged from the record. The applicant was under the impression that replying to the grounds of opposition was sufficient. The court exercised its discretion to allow the affidavit to remain on record, noting that the grounds of opposition filed by the respondents contained a mixture of facts and law, which justified the applicant's response by affidavit. To ensure fairness, the court granted the respondents leave to file a further affidavit if they deemed it necessary. The decision underscores the...
Court Disposition
Application to expunge affidavit dismissed; leave granted to respondents to file further affidavit.
Orders
- The further replying affidavit filed by the applicant shall remain on record.
- The respondents are granted leave to file a further affidavit if they so wish.
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 1335 of 2003
1. Land and Environmental Law Division
2. Civil Practice and Procedure
i) Replying affidavit filed to answer grounds of opposition instead of a further replying affidavit.
By applicant
ii) That the said affidavits be struck out
3. Held.
i) The applicant under impression replying to grounds duly field instead fo replying.
Held that the affidavit to remain on record
ii) Respondent be given leave to file further affidavit if need be
4. Case law – Nil
5. Advocates:
R. Kinuthia for Rumba Kinuthia & Co. Advocates for the plaintiff/applicant – present
M.K. Chebii of M.K. Chebii & Co. Advocates for the defendant/respondent-present
EDWARD K. KIMUHU
GEORG E MURUA MUINANIA
PETER NDONYE NGUGI
JOHN GTHUNGA
JANE NDUTA MURIUKI
MONICA WANGECHI
LYDIA WANJIRU KANGETHE
EDITH GATHONI KARIUKI
JOHN NGUNJIRI WAIGWA
ISAKA KIMANI
JOHN KIMONI KINYENJE
MERCY MUTHONI
MARY WAIRIMU KAMIRI
DOUGLAS GITHIAKA MBUGUA
MERCY NYAMBURUA KARANJA
GRACE WAMBUI MBURU
LABAN GICHAANA NJOROGE
STEPHEN NDUNGU NGURE ……...………………………….PLAINTIFFS
VERSUS
WERU WA MUTHURWA INVESTMENTS CO. LTD…1ST DEFENDANT
THIKA RIVER ESTATE LTD ………..………………….2ND DEFENDANT
P. MBURU NGUGI, NG’ANGA NYOIKE HOSEA
M. MWIKA
T/A KARAGITA SELF HELP MIXED GROUP………..3RD DEFENDANT
CHIEF LAND REGISTRAR …………………………….4TH DEFENDANT
RULING NO.4
1. There is an application before me to expurge from the records herein a replying affidavit filed to court.
2. The applicant 3rd defendant filed an application to strike out the plaint and the 1st defendants defence. That by consent of 16. 10. 07 the parties agreed to effectively file an affidavit in reply and leave given to applicant to file a further affidavit. Instead the two respondents 1st defendants and plaintiff filed grounds of opposition but not replying affidavit.
The applicant filed two further reply. The respondents states he should not have done so. The applicant state he assumed their grounds was a reply.
3) I decline to expurge the further reply from the record but I would give the respondents leave to file further affidavit. The grounds of objection filed I note was a mixture of facts and not purely law.
DATED THIS 14TH DAY OF NOVEMBER 2007.
M.A. ANG’AWA
JUDGE
R. Kinuthia for Rumba Kinuthia & Co. Advocates for the plaintiff/applicant – present
M.K. Chebii of M.K. Chebii & Co. Advocates for the defendant/respondent-present