[2010] KEHC 3102 (KLR)
The court determined that the arguments raised by the defendants regarding settlement and the merits of the case were premature at this procedural stage. Since not all parties agreed that the matter was settled, the court was obligated to allow the proceedings to continue. The application for directions was...
Source-derived case information.
- Citation
- [2010] KEHC 3102 (KLR)
- Parties
- Plaintiff: Graham Francis Hamilton Vetch; Defendant: Gordon Michael Hewitt Skinner; Defendant: Stewart Donald Grenville Vetch; Defendant: Kaplan & Stratton, Advocates (A Firm)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 18 of 2005
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons for Directions
- Outcome
- application allowed
- Legal Topics
- Originating Summons, Directions, Affidavit Evidence, Procedural Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Graham Francis Hamilton Vetch
Plaintiff
Gordon Michael Hewitt Skinner
Defendant
Stewart Donald Grenville Vetch
Defendant
Kaplan & Stratton, Advocates (A Firm)
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons for Directions
Legal Issues
- 1 Whether the court should grant directions for the Originating Summons to proceed by way of affidavit evidence.
- 2 Whether the defendants should be allowed to file replying affidavits within a specified period.
- 3 Whether the plaintiff should be granted leave to file a further affidavit if necessary.
Ratio Decidendi
The court determined that the arguments raised by the defendants regarding settlement and the merits of the case were premature at this procedural stage. Since not all parties agreed that the matter was settled, the court was obligated to allow the proceedings to continue. The application for directions was necessary to facilitate the progress of the matter and prevent indefinite delay. Therefore, the court granted all the prayers sought in the application, allowing the Originating Summons to proceed by way of affidavit evidence, permitting the defendants to file replying affidavits within fourteen days, and granting the plaintiff leave to file a further affidavit if necessary. Costs were...
Court Disposition
application allowed
Orders
- The Originating Summons dated 31st October, 2005 shall proceed to hearing by way of affidavit evidence.
- The defendants are at liberty to file their Replying Affidavit within fourteen days of directions being given.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 18 of 2005
GRAHAM FRANCIS HAMILTON VETCH………………….......….………………. PLAINTIFF
V E R S U S
1. GORDON MICHAEL HEWITT SKINNER
2. STEWART DONALD GRENVILLE VETCH
3. KAPPLAN & STRATTON, ADVOCATES (A FIRM)…………………….…….. DEFENDANTS
R U L I N G
Before me is a Chamber Summons dated 9th January, 2007 filed by M/s Amolo & Company advocates for the plaintiff named as GRAHAM FRANCIS HAMILTON VETCH. The defendants are named as GORDON MICHAEL HEWITT SKINNER (1st defendant) SETWART DONAL GREENVILLE VETCH (2nd defendant), and KAPLAN AND STRATTON ADVOCATES (3rd defendant).
The application was filed under Order XXXVI Rules 8 of the Civil Procedure Rules. The orders sought are as follows-
(a) THAT the Honourable Judge be pleased to direct that the Originating Summons dated 31st October, 2005 do proceed to hearing by way of affidavit evident.
(b) THAT the defendant be at liberty to file their Replying Affidavit within fourteen days (14) of directions being filed 9I think it should be given).
(c)THAT if necessary, the plaintiff do have leave to file a Further Affidavit to respond to the depositions filed by the Defendants.
(d)THAT costs be in the cause.
This application is opposed.
At the hearing Mr. Amolo for the Plaintiff addressed me. Mr. Makanda for the 1st and 3rd defendants addressed me.
Mr. Amolo informed me that the 2nd defendant had removed himself as a party in these proceedings. Counsel contended that this was merely an application for directions. Counsel contended that it was only after these proceedings were filed, that the 1st and 3rd defendants filed a conveyance as demanded by his client. Counsel contended that it was only after these proceedings were filed, that the 1st and 3rd defendants filed a conveyance as demanded by his client. Counsel submitted that on 9th July, 2009 Justice Onyancha declined to strike out the originating summons.
Mr. Makanda for the respondent opposed the application. Counsel submitted that the 3rd respondent was merely performing a statutory function. Counsel submitted that the originating summons speculative and had been overtaken by events. The issue of costs did not arise as the application was premature. Counsel contended that this matter should be considered as settled.
I have considered the application, the documents filed and submissions of counsel for the parties. In my view, the arguments put by counsel for the 1st and 3rd defendants go to the merits of the application. They are premature. If there is a settlement all the parties have to agree on the settlement if one or the other of the parties does not agree that there is a settlement, then the court has an obligation to hear the parties and make a decision. Therefore, in the present case the Originating Summons cannot be said to have been settled. I also cannot dismiss it on a procedural application as the one before me. I will therefore allow the application dated 9th January, 2007 to facilitate progress of the matter and ensure that the matter does not continue pending in court for an indefinite period.
Consequently, I allow the application and grant all the prayers sought, that is (a), (b), (c) and (d).
Dated and delivered at Nairobi this 11th day of March, 2010.
George Dulu
Judge.