[2013] KEHC 5791 (KLR)
The court held that the application to strike out the suit was improperly brought under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The court emphasized that where the law provides specific provisions for a remedy, such as striking out pleadings under Order 2 Rule 15 of...
Source-derived case information.
- Citation
- [2013] KEHC 5791 (KLR)
- Parties
- Plaintiff: Jemima Gathoni Warui; Defendant: Charity Wanjiku; Defendant: Josphat Gitari
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 58 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out Suit
- Outcome
- application struck out with costs
- Judges
- BN Olao
- Legal Topics
- Striking Out of Pleadings, Inherent Jurisdiction, Application of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jemima Gathoni Warui
Plaintiff
Charity Wanjiku
Defendant
Josphat Gitari
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the application to strike out the suit was properly brought under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules.
- 2 Whether the inherent jurisdiction of the court can be invoked when specific statutory provisions exist for striking out pleadings.
Ratio Decidendi
The court held that the application to strike out the suit was improperly brought under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The court emphasized that where the law provides specific provisions for a remedy, such as striking out pleadings under Order 2 Rule 15 of the Civil Procedure Rules, those provisions must be followed. The inherent jurisdiction of the court under Section 3A should not be invoked when a specific statutory mechanism exists. The court further clarified that Article 159(2)(d) of the Constitution does not allow parties to disregard procedural law, especially when represented by counsel. Consequently, the application was...
Court Disposition
application struck out with costs
Orders
- The Notice of Motion dated 20/3/2013 is struck out with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC NO. 58 OF 2012
JEMIMA GATHONI WARUI ..............................PLAINTIFF/RESPONDENT
VERSUS
CHARITY WANJIKU ......................................1ST DEFENDANT/APPLICANT
JOSPHAT GITARI .........................................2ND DEFENDANT/APPLICANT
RULING
This is in respect to the defendants/applicants Notice of Motion dated 20/3/2013 and filed in Court on 21/3/2013 seeking the following orders:-
That this Court do strike out this suit with costs.
That the costs of this application be provided for.
The application itself is brought under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules and is supported by the affidavit of the 2nd defendant/applicant and the grounds on the face of the application.
The application is opposed and a replying affidavit has been filed by the plaintiff/respondent.
Both counsels have filed submissions on the same.
Although the plaintiff/respondent’s counsel has not addressed me on whether this Court’s jurisdiction has properly been invoked, I will nonetheless decide this matter by ruling on whether or not this application can lie.
The remedy being sought is the striking out of the suit filed herein. As stated above, the application is founded under Section 3A of the Civil Procedure Act and order 51 Rule 1 of the Civil Procedure Rules. It has been stated time and again that Section 3A of the Civil Procedure Act should only be invoked where there are no provisions that can be invoked to move the Court. Where the law provides for specific provisions, they must be adhered to. Litigants and their counsels must appreciate that justice must be administered in accordance with the law and even Article 159 (1) (d) of the Constitution does not state that the law should not be followed. It only states that the Courts shall not be hampered by undue technicalities in administering justice. In a situation such as this where the litigants have the benefit of counsel, it should be expected that pleadings ought to be properly drawn.
The power to strike out a pleading is provided for under Order 2 Rule 15 of the Civil Procedure Rules and therefore it is not proper to invoke the inherent jurisdiction of the Court under Section 3A of the Civil Procedure Act to bring an application such as the one before me.
Accordingly, I order that the Notice of Motion dated 20/3/2013 be and is hereby struck out with costs.
B.N. OLAO
JUDGE
1/7/2013
1/7/2013
Before B.N. OLAO – JUDGE
CC – Muriithi
Mr. Kagio for Mr. Kathungu for Plaintiff present
Mr. Abubakar for Defendant present
COURT: Ruling delivered this 1st day of July 2013 in open Court.
B.N. OLAO
JUDGE
1/7/2013