[2003] KEHC 555 (KLR)
The court found that the Plaint and Verifying Affidavit filed by the Plaintiff misrepresented material facts concerning the status of previous proceedings between the parties. Specifically, the Notice of Withdrawal for the referenced Companies Petition had not been filed at the time the suit was instituted, and the...
Source-derived case information.
- Citation
- [2003] KEHC 555 (KLR)
- Parties
- Plaintiff: Kirinyaga Traders Co. Ltd.; Respondent: Joel Gikunju Gathungu & 16 Others
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 234 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint and Verifying Affidavit
- Outcome
- Defendants' application allowed; Plaint and Verifying Affidavit struck out; costs awarded to Defendants.
- Legal Topics
- Striking Out of Pleadings, Misrepresentation of Material Facts, Verifying Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kirinyaga Traders Co. Ltd.
Plaintiff
Joel Gikunju Gathungu & 16 Others
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint and Verifying Affidavit
Legal Issues
- 1 Whether the Plaint and Verifying Affidavit misrepresented material facts regarding the status of previous proceedings.
- 2 Whether such misrepresentation warrants striking out the Plaint and Verifying Affidavit.
Ratio Decidendi
The court found that the Plaint and Verifying Affidavit filed by the Plaintiff misrepresented material facts concerning the status of previous proceedings between the parties. Specifically, the Notice of Withdrawal for the referenced Companies Petition had not been filed at the time the suit was instituted, and the referenced civil case had not been conclusively determined. The Plaintiff did not controvert these facts. On this basis, the court held that the misrepresentation of material facts warranted the striking out of both the Plaint and the Verifying Affidavit. The Defendants' application to strike out was therefore allowed, with costs awarded to the Defendants both for the...
Court Disposition
Defendants' application allowed; Plaint and Verifying Affidavit struck out; costs awarded to Defendants.
Orders
- The Plaint and Verifying Affidavit are struck out.
- The Defendants' application dated July 17, 2001 is allowed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 234 OF 2001
KIRINYAGA TRADERS CO. LTD.……………………………….PLAINTIFF VERSUS JOEL GIKUNJU GATHUNGU & 16 OTHERS……………….RESPONDENT
RULING
In its Plaint dated July 6, 2001 and filed in this Court on the same date the Plaintiff averred as follows:
“8. That there has been previous proceedings between the Plaintiff and the Defendants in Nakuru High Court Companies Petition No. 2 of 2001 which the Petitioner has since withdrawn and also N akuru High Court Civil Case No. 205 of 2000 in which the High Court determined on the lawful directors of the Company.”
A similar averment was contained in the Verifying Affidavit accompanying the Plaint. In fact, the Petition mentioned could not have been withdrawn at the time this suit was filed since the Notice of Withdrawal was filed on July 9, 2001. The case in NAKURU HCCC No. 205 of 2000 had also not been determined conclusively at the time this suit was filed. What the Court had done in that case was to determine an interlocutory application in the matter. These matters are contained in the affidavit of Joel Gakuya sworn on July 17, 2001 in support of the Defendants’ application seeking to have this suit and the Verifying Affidavit struck out. The Replying Affidavit of Kathurai Ngunga sworn on July 19, 2001 does not controvert the matters set out by the Defendants. The Plaint and the Verifying Affidavit, therefore, misrepresented material facts. They are, on that ground alone, struck out.
I, therefore, allow the Defendants’ application dated July 17, 2001 with costs. The Defendants will also have the costs of the suit.
Dated and Delivered at Nakuru this 15th day of July, 2003.
ALNASHIR VISRAM
JUDGE