[2004] KEHC 2230 (KLR)
The High Court found that the trial magistrate exercised her discretion properly under Order VII Rule 9(1) of the Civil Procedure Rules by opting to return the plaint rather than strike out the suit. The magistrate was within her powers to choose between the two options provided by law. The court also held that the...
Source-derived case information.
- Citation
- [2004] KEHC 2230 (KLR)
- Parties
- Appellant: Mwananchi Bus Service Ltd; Appellant: Gabriel Kipkering Chekwony; Respondent: Leonard Brasa Okutumeri
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 74 of 2001
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JW Lessit
- Legal Topics
- Transfer of Suit, Costs Award, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwananchi Bus Service Ltd
Appellant
Gabriel Kipkering Chekwony
Appellant
Leonard Brasa Okutumeri
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in not making an order regarding the filed defence.
- 2 Whether the trial magistrate erred in denying the defendants/applicants costs.
Ratio Decidendi
The High Court found that the trial magistrate exercised her discretion properly under Order VII Rule 9(1) of the Civil Procedure Rules by opting to return the plaint rather than strike out the suit. The magistrate was within her powers to choose between the two options provided by law. The court also held that the issue of costs was not improperly decided, as the magistrate directed that costs would follow the cause in the competent court, and thus the appellants were not denied costs. The appeal was found to lack merit on both grounds and was dismissed in its entirety with costs awarded to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed in its entirety with costs of the appeal to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL APPEAL NO.74 OF 2001
MWANANCHI BUS SERVICE LTD) GBRIEL KIPKERING CHEKWONY)………………………APPELLANTS VERSUS LEONARD BRASA OKUTUMERI……………………..….RESPONDENT
J U DG M E N T
This is an appeal from the ruling of the Senior Resident Magistrate, Nakuru(Mrs. H. Wasilwa) dated 5th June, 2001. In her brief ruling the learned trial magistrate ordered for the return of the plant to enable the plaintiff to file it in the court with competent jurisdiction. She ordered for the costs to be in the cause. Her ruling followed a successful application by the plaintiff’s advocate made under Order VII Rule 9(1) of the Civil Procedure Rules and Sections 3A of the Civil Procedure Act. From the Appellants submissions on appeal and their Memorandum of appeal, the gheist of this appeal is two fold. One that the trial court erred in not making any order as to the fate of the filed defence. And two for denying the defendants/applicants costs.
I have considered the entire record together with the submission by both parties.
The respondent has argued that the appeal is incompetent for not showing what the court should do if the trial court’s ruling is reversed. Order VII Rule 9(1) of the Civil Procedure Rules gives the court two options. One to strike out the suit or two to order the return of the plaint. The trial Magistrate, after considering the Respondent’s application before her opted to return the plant. In so doing, she acted well within her powers as provided under Order VII Rule 9(1) of the Civil Procedure Rules which powers were invoked in the application before her. I do not agree with the appellants that in exercising her discretion and opting for one of the two available options that she erred either in law or fact. As for the order on costs the appellants were not denied costs. Costs follow the cause and she vested the issue of costs to the cause the suit would take once filed in the competent court.
In the circumstances it is not true for the appellants to say they were denied the costs.
I find no merit in this appeal and dismiss it in its entirety with costs of the appeal to the respondent.
Dated this 6th day of March, 2004 at Nakuru.
JESSIE LESIIT
JUDGE