[2008] KEHC 2941 (KLR)
The court found that the plaint was unsigned, and as the plaintiff sued in person, he was required by law to sign the plaint. Failure to do so rendered the plaint a nullity. The court relied on Order 6 rule 14 of the Civil Procedure Rules and the Court of Appeal decision in SHAH Vs INVESTMENTS & MORTGAGES BANK...
Source-derived case information.
- Citation
- [2008] KEHC 2941 (KLR)
- Parties
- Plaintiff: Jackson Karanja Kamau; Defendant: Solomon Alula Kadima
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 64 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- plaint struck out; no order as to costs of the suit; costs of the application awarded to the defendant
- Legal Topics
- Striking Out of Pleadings, Unsigned Pleadings, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Karanja Kamau
Plaintiff
Solomon Alula Kadima
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether an unsigned plaint constitutes a valid pleading under the Civil Procedure Rules.
- 2 Whether the suit should be struck out due to the plaint being unsigned.
- 3 Whether costs should be awarded upon striking out the plaint.
Ratio Decidendi
The court found that the plaint was unsigned, and as the plaintiff sued in person, he was required by law to sign the plaint. Failure to do so rendered the plaint a nullity. The court relied on Order 6 rule 14 of the Civil Procedure Rules and the Court of Appeal decision in SHAH Vs INVESTMENTS & MORTGAGES BANK LIMITED, which established that an unsigned plaint is liable to be struck out. The court also considered the plaintiff's claim of an agreement to withdraw the case without costs but found no sufficient basis to depart from the legal requirement. The authenticity of the defendant's affidavit was not successfully challenged, as the defendant's absence was not adequately explained and...
Court Disposition
plaint struck out; no order as to costs of the suit; costs of the application awarded to the defendant
Orders
- The plaint is struck out.
- No order as to costs of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Civil Case 64 of 2007
JACKSON KARANJA KAMAU ====+=================PLAINTIFF
V E R S U S
SOLOMON ALULA KADIMA ======================DEFENDANT
R U L I N G
The defendant’s application is for the striking out or the dismissal of the suit.
The reason advanced for seeking those orders is that the plaint which commenced the action is unsigned, and therefore it is deemed not to constitute a valid pleading.
Order 6 rule 14 of the Civil Procedure Rules provides as follows;
“Every pleading shall be signed by an advocate,or recognized agent (as defined by Order III, rule 2),or by the party if he sues or defends in person.”
In this case, the plaintiff sued in person. He ought to have signed the plaint, but failed to do so. Accordingly, the plaint is a nullity.
In accordance with the decision of the Court of Appeal in SHAH Vs INVESTMENTS & MORTGAGES BANK LIMITED [2001] 1 E.A. 275, an unsigned plaint is liable to being struck out.
The plaintiff has not made any submissions to the contrary, nor did I find any reason not to strike out the plaint herein.
However, the plaintiff insists that there was already an agreement between the parties herein, that the case would be withdrawn, with no order as to costs.
According to the plaintiff, the agreement between the two parties was arrived at, in the offices of Mr. Wanyonyi, advocate for the defendant.
As the defendant appeared to have sworn an affidavit confirming that he had no interest in the land that is the subject matter of the suit, whilst his advocate doubted the authenticity of the said affidavit, the court adjourned the application, so that the defendant could personally be given the opportunity to attend court, to state his position. When adjourning the application, I did express myself thus;
“I am concerned that the defendant and his advocate may be acting in an inconsistentmanner, if the affidavits allegedly sworn by thedefendant are authentic.
As counsel has submitted that the defendantcould not have sworn the affidavit (annexetureJKK2). I hold the considered view that instead ofbasing my verdict on presumptions, the defendantshould be summoned to attend court personally.”
Regrettably, the defendant did not attend court, as he was,
reportedly, in Tanzania.
In the circumstances, I find no reason to doubt the authenticity of the defendant’s affidavit, which was sworn before Miss Edel Fuchaka, Advocate and Commissioner for Oaths, because the person who cast aspersions thereon, did not give me anything to back his contentions.
In the event, the plaint is struck out, but with no order as to costs of the suit. However, the costs of the application dated 20/8/2007 are awarded to the defendant.
Dated and Delivered at Kitale, this 30th day of January, 2008.
FRED A. OCHIENG
JUDGE