[2004] KEHC 1642 (KLR)
The court held that the omission of the warning words prescribed by Order 50 Rule 15(2) of the Civil Procedure Rules is a defect of form and not substance. The purpose of the provision is to warn parties of the consequences of non-attendance, and since the Respondent appeared, no prejudice was suffered. The court...
Source-derived case information.
- Citation
- [2004] KEHC 1642 (KLR)
- Parties
- Applicant: Esther Wahome Bureau Limited; Respondent: MFI Office Solutions Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1345 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Pleadings Form, Order 50 Rule 15, Order 6 Rule 12, Technicalities, Court Inherent Power
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wahome Bureau Limited
Applicant
MFI Office Solutions Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether omission of prescribed warning words under Order 50 Rule 15(2) is fatal to the application.
- 2 Whether such omission is a matter of form or substance.
- 3 Whether the court can cure defects in form under Order 6 Rule 12.
Ratio Decidendi
The court held that the omission of the warning words prescribed by Order 50 Rule 15(2) of the Civil Procedure Rules is a defect of form and not substance. The purpose of the provision is to warn parties of the consequences of non-attendance, and since the Respondent appeared, no prejudice was suffered. The court further held that even if the omission was a defect, it could be cured under Order 6 Rule 12, which allows the court to overlook technical defects that do not go to the substance of the matter. Therefore, the preliminary objection lacked merit and was disallowed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is disallowed.
- Parties to take a hearing date for the Application dated 2nd November 2003.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPL. NO. 1345 OF 2003
ESTHER WAHOME BUREAU LIMITED………………… APPLICANT
VERSUS
MFI OFFICE SOLUTIONS LIMITED ……………..…..RESPONDENT
R U L I N G
1. The Preliminary Objection raised by Learned Counsel for the Respondent is this; that the words “if any party served does not appear at the time and place above -mentioned such order will be made and proceedings taken as the co urt may think just and expedient”are missing in the Application dated 2nd November 2003.
2. I am told that Order 50 Rule 15(2) specifically uses the word “shall” and therefore without the words above, the whole Application should be struck out.
3. In response, counsel for the Applicant tells me that those words merely go to form and not to the substance of the Application and Order 6 Rule 12 cures such defects as they are merely technical.
4. It is becoming increasingly clear that the use of Preliminary Objections is intended to serve a purpose other than known and expected in law. Time and time again, courts have said that Preliminary Objections must be predicated upon a matter of law that would cripple a proceeding because it goes to substance.
5. As I see it, the purpose for which the words used in Order 50 Rule 15(2) are put there to warn a party of the consequences of non-attendance and not the substance of any claim it may have against another party or is defending as filed against him. In the instant case the party warned has appeared and cannot now claim that those words should be applied to it.
6. I do not see merit in the objection and even if there was, it can be soothed with the inherent power of this court to admit a pleading even with some defect in form.
7. I disallow the same and ask that parties take a hearing date for the Application dated 2nd November 2003.
Dated and delivered at Nairobi this 18th day of February 2004.
I. LENAOLA
Ag. JUDGE
18. 2.2004
Before Lenaola Ag. J.
Amos CC
Ruling read in the presence of Mr. Kamau for Miss Njoroge for the
Respondent
No appearance for the Applicant.
I. LENAOLA
Ag. JUDGE