[2010] KEHC 2871 (KLR)
The court found that the application to strike out the memorandum of appeal and/or dismiss the appeal was incompetent because it was not brought in the proper form. Specifically, the application was brought by chamber summons instead of by notice of motion as required under Order L rule 1 and section 79(g) of the...
Source-derived case information.
- Citation
- [2010] KEHC 2871 (KLR)
- Parties
- Appellant: Lake Basin Development Authority; Respondent: Samwel Othieno Ngolo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 28 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- application dismissed as incompetent
- Legal Topics
- Striking Out Pleadings, Abuse of Process, Procedure for Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lake Basin Development Authority
Appellant
Samwel Othieno Ngolo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the application to strike out the memorandum of appeal and/or dismiss the appeal is competent as filed.
- 2 Whether the application should have been supported by an affidavit under Order VI rule 13(1)(d).
- 3 Whether the correct procedure was followed in bringing the application.
Ratio Decidendi
The court found that the application to strike out the memorandum of appeal and/or dismiss the appeal was incompetent because it was not brought in the proper form. Specifically, the application was brought by chamber summons instead of by notice of motion as required under Order L rule 1 and section 79(g) of the Civil Procedure Act. Furthermore, while no affidavit is required for applications under Order VI rule 13(1)(a), an affidavit is necessary for applications under sub-rule (d), which alleges abuse of process. The applicant failed to provide such an affidavit. As a result, the court dismissed the application as incompetent but granted liberty to the applicant to file a proper...
Court Disposition
application dismissed as incompetent
Orders
- The application is dismissed with costs.
- The applicant is at liberty to file a proper application within 14 days.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU
Civil Appeal 28 of 2009
LAKE BASIN DEVELOPMENT AUTHORITY.........................APPELLANT
VERSUS
SAMWEL OTHIENO NGOLO...............................................RESPONDENT
(APPEAL FROM JUDGEMENT AND DECISION OF
SENIOR RESIDENT MAGISTRATE WINAM COURT:
IN
SRMCC NO.196 OF 2007
****************
R U L I N G
The application before me is a chamber summons brought pursuant to Order V1 rule 13(1)(a) and (d) of the Civil Procedure Rules seeking to have the memorandum of appeal struck out and/ or the appeal dismissed, the sum deposited as security released forthwith to the applicant’s counsel. It also seeks for costs of the suit. The application is supported by the grounds on the face of the application.
The Respondent/Appellant filed grounds of opposition to the effect that the application as drawn and filed is misconceived, bad in law, an abuse of court process. Further that the appeal was filed on time and there has been no review of the subject of appeal. The respondent contends that the appeal is fatally defective and ought to be dismissed.
Order V1 rule 131(a) and (d) provides:
“13(1) At any stage of the proceedings
the court may order to be struck out
or amended any pleading on the ground that –
(a)it discloses no reasonable cause
of action in defence or
(b)…………..
(c) ……………
(d)……….it is otherwise an abuse
of the process of the court.”
The Order 13 rule (2) states that:
“No evidence shall be admissible on the
application under sub-rule (1)(a)
but the application shall state concisely
the grounds, on which it is made.”
No affidavit accompanied the application presumably on account of this proviso. However, it is notable that the applicant brought this application based on sub-rulesa & dand ought to have adduced evidence by way of affidavit in support of sub-rule (d).
That as it may, I am of the view that an application seeking to have the appeal struck out ought to be by way of notice of motion under Order L rule 1 and section 79(g) of the Civil Procedure Act. I, therefore, find the application incompetent and dismiss the same with costs.
The applicant be at liberty to file a proper application within the next 14 days hereof.
DATED AND DELIVERED THIS 23RD DAY OF APRIL 2010
ALI-ARONI
J U D G E
IN THE PRESENCE OF:
……………………………………………Counsel for the appellant
……………………………………………Counsel for the respondent