[2024] KEHC 4638 (KLR)
The court held that it was not required to issue a notice to show cause before striking out unsigned pleadings, as the presence of competent pleadings is a preliminary matter for the court to satisfy itself before admitting a suit. With electronic filing, the registry cannot vet documents for signatures, so the...
Source-derived case information.
- Citation
- [2024] KEHC 4638 (KLR)
- Parties
- Plaintiff: Robin Hardie; Defendant: Alex Odundo t/a Olex Techno Enterprises
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Commercial Case E009 of 2023
- Procedural Posture
- Commercial Case / Ruling on Application to Set Aside Striking Out Order and Reinstate Suit
- Outcome
- Application to set aside striking out order allowed; suit reinstated; no order as to costs.
- Judges
- RE Aburili
- Legal Topics
- Striking Out of Pleadings, Authentication of Documents, Electronic Filing, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robin Hardie
Plaintiff
Alex Odundo t/a Olex Techno Enterprises
Defendant
Procedural Posture
Commercial Case / Ruling on Application to Set Aside Striking Out Order and Reinstate Suit
Legal Issues
- 1 Whether the court erred in striking out the plaint and witness statement for lack of signatures without issuing a notice to show cause.
- 2 Whether the subsequent filing of duly signed documents warrants setting aside the striking out order and reinstating the suit.
Ratio Decidendi
The court held that it was not required to issue a notice to show cause before striking out unsigned pleadings, as the presence of competent pleadings is a preliminary matter for the court to satisfy itself before admitting a suit. With electronic filing, the registry cannot vet documents for signatures, so the responsibility lies with the parties. However, since the applicant subsequently uploaded duly signed plaint and witness statements, the defect was cured. The court found no error in its earlier order but, in the interests of justice and upon review, set aside the order striking out the suit and reinstated the case as filed. No order as to costs was made.
Court Disposition
Application to set aside striking out order allowed; suit reinstated; no order as to costs.
Orders
- Order of 26th January 2024 striking out the plaint and witness statement is reviewed and set aside.
- Suit reinstated as filed on 21st September 2023.
Full Case Text
Judgment text and source record
23 paragraphs
Hardie v Alex Odundo t/a Olex Techno Enterprises (Commercial Case E009 of 2023) [2024] KEHC 4638 (KLR) (2 February 2024) (Ruling)
Neutral citation: [2024] KEHC 4638 (KLR)
Republic of Kenya
In the High Court at Kisumu
Commercial Case E009 of 2023
RE Aburili, J
February 2, 2024
Between
Robin Hardie
Plaintiff
and
Alex Odundo t/a Olex Techno Enterprises
Defendant
Ruling
1. I have perused the application dated 1st February 2024 under Certificate of Urgency. I find no urgency involved. I do not certify it as urgent.
2. However, I observe that in the affidavit in support of the application for setting aside of the orders striking out the suit herein for want of signatures on the plaint and the witness statement, the applicant’s counsel annexes a duly signed plaint and witness statements, which documents are not the ones that were paid for on filing.
3. For avoidance of doubt, this court did not have to issue any Notice to Show cause before striking out pleadings which are not signed as that is a Preliminary issue which the court must satisfy itself with, that there are competent pleadings before it before it can admit the suit and since the filing is now electronic, the registry staff have no means of vetting documents which are filed.
4. It follows that parties must ensure that pleadings they upload and pay for are duly authenticated. The court shall not issue any notices to show cause over documents which are already filed. It will proceed to strike out and it will be upon the affected party to approach the court with properly authenticated documents.
5. This court therefore committed no error of fact. However, as it is now clear that duly signed plaint and witness statements have been uploaded in the system, I hereby review and set aside the order of 26th January 2024 striking out the Plaint and Witness statement and reinstate the suit herein as filed on 21st September 2023.
6. There shall be no orders as to costs.
7. The file to be placed before the Deputy Registrar on 6th February 2024 for consideration of the request for entry of interlocutory judgment in default of appearance and defence.
8. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 2NDDAY OF FEBRUARY, 2024R. E. ABURILIJUDGE