[2018] KEELC 1681 (KLR)
The court held that since the amended petition and amended notice of motion had not been paid for, they did not form part of the court's record. As such, there was nothing to be struck out on the basis advanced by the applicant. However, the court proceeded to strike out the amended pleadings from the record for...
Source-derived case information.
- Citation
- [2018] KEELC 1681 (KLR)
- Parties
- Applicant: Katana Karisa & 7 Others; Respondent: Juma Mohamed Zaam & 3 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Land Case 334 of 2015
- Procedural Posture
- Land Case / Ruling on Notice of Motion to Strike Out Amended Pleadings for Non Payment of Court Fees
- Outcome
- Amended pleadings struck out for non-payment of court fees; costs awarded to applicant.
- Judges
- AA Omollo
- Legal Topics
- Striking Out Pleadings, Court Fees, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katana Karisa & 7 Others
Applicant
Juma Mohamed Zaam & 3 Others
Respondent
Procedural Posture
Land Case / Ruling on Notice of Motion to Strike Out Amended Pleadings for Non Payment of Court Fees
Legal Issues
- 1 Whether the amended petition and amended notice of motion should be struck out for non-payment of court fees.
- 2 Whether the pleadings form part of the court record if court fees have not been paid.
Ratio Decidendi
The court held that since the amended petition and amended notice of motion had not been paid for, they did not form part of the court's record. As such, there was nothing to be struck out on the basis advanced by the applicant. However, the court proceeded to strike out the amended pleadings from the record for non-payment of court fees. The applicant was awarded the costs of the application for moving the court. The court did not consider the merits of the motion, focusing solely on the procedural defect of non-payment of court fees.
Court Disposition
Amended pleadings struck out for non-payment of court fees; costs awarded to applicant.
Orders
- The amended petition and amended notice of motion are struck out from the record for non-payment of court fees.
- The applicant is granted the costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
LAND CASE NO. 334 OF 2015
(FORMERLY PETITION NO. 34 OF 2015)
KATANA KARISA & 7 OTHERS………………………….…….PETITIONERS
-VERSUS-
JUMA MOHAMED ZAAM & 3 OTHERS……...………….…..RESPONDENTS
RULING
1. For determination is the notice of motion dated 29th March 2017 brought under Order 8 rule 2, Order 2 Rule 15 (1) (d) & (2) of the Civil Procedure Rules (2010) seeking to have the amended petition, notice of motion and supporting affidavit dated 27. 2.2017 struck out. The basis for seeking to strike out being that the leave granted to amend expired on 22. 2.2017.
2. The motion is opposed by the replying affidavit of Katana Karisa sworn on the 12th May 2017.
3. I have perused the amended pleadings as filed by the petitioner. Attached to the pleadings is receipt No 8141635 for Kshs 75/= being payment of amended certificate of urgency. The said receipt is dated 6. 3.2017. The assessment by the Court assistant also records Kshs 75/= as the fees payable on the certificate of urgency. I have brought out the above facts to explain that the pleadings sought to be struck off have not been paid for. I will therefore not consider the motion on its merits.
4. I have looked at the application dated 25. 10. 2016 which sought leave to effect the amendments. What was paid for was only the costs of that application which was assessed at Kshs 1575/=.
5. Consequently given that the amended petition and amended notice of motion have not been paid for, they do not form part of this Court’s record. Thus there is nothing to be struck out based on the reasons stated in the motion of the 1st Respondent. However the amended pleadings in the Court file shall be and are hereby struck out from the record for non-payment of Court fees. The applicant is granted the costs of the application for moving the Court.
Dated, signed & delivered at Mombasa this 3rd October 2018
A. OMOLLO
JUDGE