[2004] KEHC 1991 (KLR)
The court held that there is no provision under Order 29 Rules 1 or 2 of the Civil Procedure Rules that invalidates suits by or against a firm. On the contrary, Order 29 Rule 9 and the quoted rules make it clear that a firm is capable of being sued. The record also clearly identifies the proprietor of the 1st...
Source-derived case information.
- Citation
- [2004] KEHC 1991 (KLR)
- Parties
- Plaintiff: Joshua Okeyo Ng’ani; Defendant: Lion Motor Dealers & Technical Institute; Defendant: Zion Credit Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 250 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit Against 1st Defendant
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out of Suit, Capacity to Be Sued, Affidavit by Advocate, Order 29 Rules, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Okeyo Ng’ani
Plaintiff
Lion Motor Dealers & Technical Institute
Defendant
Zion Credit Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit Against 1st Defendant
Legal Issues
- 1 Whether the 1st defendant, being a firm, has capacity to be sued under Order 29 of the Civil Procedure Rules.
- 2 Whether the affidavit sworn by the advocate for the 1st defendant is defective and should be struck out.
- 3 Whether the application to strike out the suit against the 1st defendant meets the threshold for being scandalous, frivolous, or vexatious.
Ratio Decidendi
The court held that there is no provision under Order 29 Rules 1 or 2 of the Civil Procedure Rules that invalidates suits by or against a firm. On the contrary, Order 29 Rule 9 and the quoted rules make it clear that a firm is capable of being sued. The record also clearly identifies the proprietor of the 1st defendant. Any insufficiency regarding the identification of proprietors can be addressed by an appropriate application by the plaintiff. The objection to the affidavit sworn by the advocate for the 1st defendant was rejected, as the affidavit dealt with matters of law and not contested facts. The application to strike out the 1st defendant was therefore dismissed, and costs were...
Court Disposition
application dismissed with costs
Orders
- The application to strike out the 1st defendant from the suit is dismissed.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBIMILIMANI COMMERCIAL COURTS CIVIL SUIT NO 250 OF 1999
JOSHUA OKEYO NG’ANI ………………………………… PLAINTIFF
VERSUS
LION MOTOR DEALERS &
TECHNICAL INSTITUTE ……………...…………… 1ST DEFENDANT
ZION CREDIT LIMITED …………………………… 2ND DEFENDANT
RULING
This is an application by the 1st Defendant to have this suit struck out and/or dismissed as against it and the 1st Defendant’s name be struck out from this suit or in the alternative the suit be stayed. The application is opposed.
The Plaintiff filed this suit way back in March 1999. After various applications were heard and disposed of the 1st defendant filed this application on 6th November, 2003. In the application the Applicant is purported to be one Jackson Mackenzie who according to the supporting affidavit sworn on 6th November, 2003 is an advocate instructed by the firm of M/s Wanjao & Wanjau Company Advocates for the defendants. No objection was raised against the description of the said advocate as the Applicant. I believe counsel for the Plaintiff did not raise objection as he believed the misdescription of the applicant is an inconsequential error.
The Plaintiff’s counsel however raised objection against the affidavit sworn by the said advocate on the ground that as counsel he should not have sworn the said affidavit. He relied on the case of Nairobi HCCC No 1340 of 1999 to support his contention. He urged that the said affidavit be struck off.
I can dispose of the issue of the “defective” affidavit now. The offending affidavit in Nairobi HCCC No 1340 of 1999 contained facts in dispute between the parties. The offending paragraphs were accordingly struck out.
In the present case the applicant’s counsel has deponed to matters of law and not contested matters of fact. In my view counsel is the best deponent regarding matters of law. Objection raised against Mr Jackson Mackenzie’s affidavit is rejected.
I revert to the application for striking out the 1st defendant from the record on the ground that it is a firm and has no capacity to be sued. Both advocates rely on the provisions of Order 29. The 1st defendant’s advocate quotes Rules 1 and 2 (1) (2). The Plaintiff’s advocate quotes Rules 2 and 4 of the said Order.
In my view, there is no provision under Order 29 1 or 2 which invalidates suits by or against a firm. Indeed it is clear from the reading of the said Order 29 Rule 9 and the quoted Rules that a firm is capable of being sued. Indeed the record is quote clear as to who the proprietor of the 1st defendant is.
If there is insufficient material regarding the proprietor or proprietors of the 1st defendant the same can be resolved by an appropriate application by the Plaintiff. The case of the KING VS HOLDEN 1 KCB 1911 page 483 stated the correct position in law but the facts are not relevant to the present case.
Before concluding this matter I should comment on the submission that as the applicant has not shown that the application is scandalous, frivolous or vexatious the application is in competent. The Applicant’s counsel clearly abandoned reliance on these grounds. It is not therefore necessary to say anything further about this.
In the result the application is dismissed with costs.
Dated and delivered at Nairobi this 16th January, 2004.
F. AZANGALALA
JUDGE
16. 1.2004