[2006] KEHC 1039 (KLR)
The court held that the language of Order 50 Rule 16(1) of the Civil Procedure Rules is clear and unambiguous, permitting a respondent to file either grounds of opposition or a replying affidavit, but not both. The court rejected the defendant's argument that both documents could be filed, emphasizing that the...
Source-derived case information.
- Citation
- [2006] KEHC 1039 (KLR)
- Parties
- Plaintiff: J.B. Machira T/A Machira & Co Advocates; Defendant: Gitobu Imanyara T/A Gitobu Imanyara & Co Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1362 of 2004
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; defendant's replying affidavit expunged
- Judges
- JL Osiemo
- Legal Topics
- Preliminary Objection, Striking Out Pleadings, Defamation, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.B. Machira T/A Machira & Co Advocates
Plaintiff
Gitobu Imanyara T/A Gitobu Imanyara & Co Advocates
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether Order 50 Rule 16(1) of the Civil Procedure Rules prohibits a party from filing both grounds of opposition and a replying affidavit to an application.
- 2 Whether the defendant's replying affidavit should be expunged from the record for contravening the Civil Procedure Rules.
Ratio Decidendi
The court held that the language of Order 50 Rule 16(1) of the Civil Procedure Rules is clear and unambiguous, permitting a respondent to file either grounds of opposition or a replying affidavit, but not both. The court rejected the defendant's argument that both documents could be filed, emphasizing that the rule's wording does not allow for such interpretation. Consequently, the plaintiff's preliminary objection was upheld, and the defendant's replying affidavit was expunged from the record as it was filed contrary to the procedural requirements.
Court Disposition
preliminary objection upheld; defendant's replying affidavit expunged
Orders
- The plaintiff's preliminary objection is upheld.
- The defendant's replying affidavit filed on 27th February 2006 is expunged from the record.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Civil Case 1362 of 2004
J.B. MACHIRA T/A MACHIRA & CO ADVOCATES………………..………………..….PLAINTIFF
VERSUS
GITOBO IMANYARA T/A GITOBU IMANYARA & CO ADVOCATES……………..DEFENDANT
RULING
By way of a plaint dated 14th December 2005 and amended on 31st January 2005 the plaintiff brought this claim against the defendant seeking damages for defamation.
The defendant on being served with summons filed a defence denying the claim in total.
On 13TH December 2005 the plaintiff brought this Chamber Summons under Order VI Rule 13 (1) (b) (c) and (d) of the Civil Procedure Rules seeking orders that the Defendant’s defence filed herein be struck out and the plaintiff’s suit to proceed for assessment of damages.
On 24th February 2006 he also filed an affidavit sworn by Mr. Gitobu Imanyara presumably a replying affidavit to the same Chamber Summons
The plaintiff raised a Preliminary Objection on a point of law in that under the provisions of Order L Rule 16 one cannot file both the grounds of Opposition as well. By filing both documents the defendant contravened the provisions of Order L Rule 16 of the Civil Procedure Rules which provides as follows:
“O.50 r 16
(1)Any respondent who wishes to oppose any motion or other application shall file and serve on the applicant a replying affidavit or a statement of grounds of opposition if any, not less than three clear days before the date of hearing.”
Mr. Machira in conclusion urged the court to expunge the defendant’s later document which is the replying affidavit. But according to Mr. Orengo counsel for the defendant, the provisions of Order 50 Rule 16 (1) do not prohibit a party from filing both the grounds of opposition and a replying affidavit as the two documents have different objectives and therefore one cannot substitute the other.
With due respect to counsel the provisions of Order 50 Rule 16 (1) of the Civil Procedure Rules are very clear and do not call for any other interpretation other than the clear meaning of the words as contained therein. One can either file grounds of opposition or a replying affidavit but not both.
For the above reasons the plaintiff Preliminary Objection raised herein is upheld and consequently the defendant’s later document that is the replying affidavit filed herein on 27th February 2006 is expunged from the record.
Dated and delivered at Nairobi this 19th day of October 2006.
J.L.A. OSIEMO
JUDGE