[2004] KEHC 475 (KLR)
The court found that the plaintiff's plaint did not contain the mandatory averment required by Order VII Rule 1(1)(e) of the Civil Procedure Rules. The court held that this requirement is mandatory and must be included in the plaint itself, not merely in a verifying affidavit. As the plaint failed to comply with...
Source-derived case information.
- Citation
- [2004] KEHC 475 (KLR)
- Parties
- Plaintiff: Josiah Kioko Ngumbi; Defendant: Charles Kyalo Mawili
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 93 of ??
- Procedural Posture
- Civil Suit / Preliminary Objection Ruling
- Outcome
- plaint_struck_out
- Judges
- RPV Wendoh
- Legal Topics
- Pleadings Defects, Striking Out Plaint, Mandatory Pleading Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Kioko Ngumbi
Plaintiff
Charles Kyalo Mawili
Defendant
Procedural Posture
Civil Suit / Preliminary Objection Ruling
Legal Issues
- 1 Whether the plaint is defective for failing to include an averment as required by Order VII Rule 1(1)(e) of the Civil Procedure Rules.
- 2 Whether the defect is fatal and warrants striking out the plaint.
Ratio Decidendi
The court found that the plaintiff's plaint did not contain the mandatory averment required by Order VII Rule 1(1)(e) of the Civil Procedure Rules. The court held that this requirement is mandatory and must be included in the plaint itself, not merely in a verifying affidavit. As the plaint failed to comply with this essential procedural requirement, it was defective. Consequently, the court upheld the defendant's preliminary objection and struck out the plaint, but allowed the plaintiff the liberty to file a proper plaint in the appropriate court as provided by law.
Court Disposition
plaint_struck_out
Orders
- The plaint is struck out for non-compliance with Order VII Rule 1(1)(e) Civil Procedure Rules.
- The plaintiff may file a proper plaint in the proper court as provided by law.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 93 OF 2000
JOSIAH KIOKO NGUMBI…………………………PLAINTIFF
VERSUS
CHARLES KYALO MAWILI……………………DEFENDANT
R U L I N G
The defendant has raised a preliminary objection at para 10 of the defence that the plaint herein is defective and should be struck out. This matter had come up for hearing and counsel for plaintiff not being ready to proceed wanted the court to transfer it to the lower court but counsel for defendant decided to argue the preliminary objection at this point as he contends that the suit is incompetent and can not be transferred to another court. He cited Order 7 Rule 1 (1) (e) Civil Procedure Rules as the provision which the plaintiff has failed to comply with. In opposition to the objection the counsel for plaintiff contends that they have complied with the said provision of law as there is an affidavit filed with the plaint verifying the truthfulness of the contents of the plaint and that this objection is premature.
Order VII Rule 1 (1) Civil Procedure Rules provides that the plaint shall contain the following particulars:- The particulars are listed from a to e and (e) provides: ‘an averment that there is no other suit pending and that there have been no previous proceedings in any court between the plaintiff and the defendant over the same subject matter’. This provision has to be included in the plaint not in the verifying affidavit. The provisions under O VII Rule 1 (1) Civil Procedure Rules are mandatory for the word used is ‘shall’. The plaintiffs plaint filed herein on 10. 5.2000 does not contain such an averment and the plaint therefore offends provisions of Order VII rule 1(1) (e) Civil Procedure Rules and the defendant’s objection is therefore upheld and the plaint is hereby struck out. The plaintiff may file the proper plaint in the proper court as provided by the law. Costs of this suit to Defendants
. Dated, read and delivered at Machakos this……………….day of…………………….,2004.
R. WENDOH
JUDGE