[2004] KEHC 901 (KLR)
The court found the application fatally defective for lack of clarity, precision, and comprehensibility. The prayers did not specify the party to be injuncted or the relief sought in a legally cognizable manner. The supporting affidavit could not cure the defects in the application. The court emphasized that both...
Source-derived case information.
- Citation
- [2004] KEHC 901 (KLR)
- Parties
- Plaintiff: Joel Kipkemoi Toei; Plaintiff: Isaac Kiprono Busienei; Defendant: Recho C. Tuei; Defendant: Sarah C. Tuei; Defendant: Reuben Kiprono Tuei; Defendant: Azaria Kipkemoi Tuei; Defendant: Henry Kipkemoi Arap Towett
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 52 of 2004
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application struck out as incompetent
- Legal Topics
- Interlocutory Applications, Striking Out Applications, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joel Kipkemoi Toei
Plaintiff
Isaac Kiprono Busienei
Plaintiff
Recho C. Tuei
Defendant
Sarah C. Tuei
Defendant
Reuben Kiprono Tuei
Defendant
Azaria Kipkemoi Tuei
Defendant
Henry Kipkemoi Arap Towett
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application dated 6th October, 2004 is competent and discloses clear prayers against identifiable parties.
- 2 Whether the supporting affidavit can cure defects in the application.
Ratio Decidendi
The court found the application fatally defective for lack of clarity, precision, and comprehensibility. The prayers did not specify the party to be injuncted or the relief sought in a legally cognizable manner. The supporting affidavit could not cure the defects in the application. The court emphasized that both the application and supporting affidavit must be legally sound, especially in cases involving multiple parties. As a result, the application was struck out as incompetent and bad in law.
Court Disposition
application struck out as incompetent
Orders
- The application dated 6th October, 2004 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO CIVIL SUIT NO. 52 OF 2004
JOEL KIPKEMOI TOEI…………………………..1ST PLAINTIFF/RESPONDENT
ISAAC KIPRONO BUSIENEI……………….…...2ND PLAINTIFF/RESPONDENT
VERSUS
RECHO C. TUEI………………………..………….1ST DEFENDANT/APPLICANT
SARAH C. TUEI………………………..…………2ND DEFENDANT/ APPLICANT
REUBEN KIPRONO TUEI……………….…...…3RD DEFENDANT/ APPLICANT
AZARIA KIPKEMOI TUEI……….……………..4TH DEFENDANT/ APPLICANT
HENRY KIPKEMOI ARAP TOWETT…………5TH DEFENDANT/ APPLICANT
RULING
The Defendants/Applicants filed an incomprehensible application dated 6th October, 2004 presumably against the Plaintiffs.
The prayers sought therein will reveal why I term it as incomprehensible.
They were as follows:- “
(1)THATservice of this application be dispenses with in the first instance.
(2) THAT this Honourable Court be pleased to give temporary injunction pending the hearing ad determination.
(3) THAT the Defendant/respondent has wilfully rented the premises knowing that I have purchased the same.
(4) THAT the cost of this application be costs in the cause.”
The application is shown to have been filed by counsel for the Plaintiff/Applicant yet from the reading of the affidavit in support of the application that does not seem to be so. Prayer No. 2 above does not disclose who is to be injuncted from doing what. The purported prayer No.3 is not a prayer at all, it is a statement.
A reading of the supporting affidavit seems to indicate that the application was intended to be made by the fifth defendant but it is not clear whether it was directed against the first or the second plaintiff or both.
A Chamber Summons or a Notice of Motion ought to be precise, comprehensible and ought to disclose without any difficulties the exact orders which are being sought and the party seeking the same and against whom. This is even more important where there are several plaintiffs and defendants in a matter. An affidavit merely comes to support the application and both documents must be legally sound. A competent affidavit cannot substitute or remedy on incompetent application. And I have not said the supporting affidavit herein is good either.
The application is simply bad in law and incompetent. I strike it out but without any costs to the Plaintiffs/Respondents as they had not filed any documents. If the aggrieved party or parties are desirous of any court intervention in this matter they should file a competent application.
DATED, SIGNED & DELIVERED at Nakuru this 26th day of November, 2004.
DANIEL MUSINGA
AG. JUDGE
26/11/2004