[2011] KEHC 3497 (KLR)
The court held that although the defendant was required to file a memorandum of appearance before or simultaneously with the replying affidavit, the omission was a procedural technicality that did not prejudice the plaintiff. In line with Sections 1A and 1B of the Civil Procedure Act, which emphasize the just,...
Source-derived case information.
- Citation
- [2011] KEHC 3497 (KLR)
- Parties
- Plaintiff: Lotus Hotel; Defendant: Water Resources Management Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 151 of 2010
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Representation and Affidavit Validity
- Outcome
- preliminary objection overruled; defendant to enter appearance within 15 days or affidavit expunged; costs to plaintiff
- Judges
- AI Tullu
- Legal Topics
- Memorandum of Appearance, Preliminary Objection, Replying Affidavit, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lotus Hotel
Plaintiff
Water Resources Management Authority
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Representation and Affidavit Validity
Legal Issues
- 1 Whether the defendant's replying affidavit should be expunged for failure to file a memorandum of appearance before filing the affidavit.
- 2 Whether the procedural lapse prejudiced the plaintiff or was a curable technicality under the Civil Procedure Rules.
Ratio Decidendi
The court held that although the defendant was required to file a memorandum of appearance before or simultaneously with the replying affidavit, the omission was a procedural technicality that did not prejudice the plaintiff. In line with Sections 1A and 1B of the Civil Procedure Act, which emphasize the just, expeditious, and affordable resolution of civil disputes, the court found that expunging the affidavit would defeat the objective of substantive justice. The court allowed the defendant to regularize its position by entering appearance within 15 days, after which the replying affidavit would be deemed properly on record. Failure to do so would result in the affidavit being expunged....
Court Disposition
preliminary objection overruled; defendant to enter appearance within 15 days or affidavit expunged; costs to plaintiff
Orders
- Defendant to enter appearance within 15 days from the date of the ruling.
- If appearance is entered, the replying affidavit is deemed duly filed and properly on record.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 151 OF 2010
LOTUS HOTEL ..................................................................................................PLAINTIFF
VERSUS
WATER RESOURCES MANAGEMENT AUTHORITY .............................. DEFENDANT
RULING
The Plaintiff filed an application dated 14th May, 2010 for, inter alia, the following order against the Defendant based on the plaint dated 14th May, 2010: -
“1. ……………………………
2. That the Honourable Court do issue a temporary injunction restraining the Defendant, its agents, servants, employees and/or assignees from demanding any licence fee, interfering with the plaintiff’s borehole and from effecting any arrest or punitive measures against Plaintiff, pending the hearing and determination f this application interparties.
3. ……………………………….
4. ……………………………….”
The Defendant filed a Replying Affidavit sworn on 10th June, 2010 in opposition to the application. The affidavit was drawn and filed by the firm of Lumumba, Mumma & Kaluma, Advocates.
At the hearing, the Plaintiff raised a Preliminary Objection on a point of law that the Replying Affidavit dated 10th June, 2010 should be expunged from the record as firm of M/s Lumumba, Mumma & Kaluma Advocates are improperly on record. The Plaintiff argued that having served the summons, plaint and the application, the Defendant was obliged to have filed a Memorandum of Appearance and not come through a Notice of Appointment of Advocates.
I have considered the Preliminary Objection on a point of law. I agree that once summons was served, then the Defendant was required to file a Memorandum of appearance in person or through Counsel. The filing of the Replying Affidavit should have been done after appearance was entered or simultaneously.
Should the Replying Affidavit be struck out and expunged, in the circumstances? I think that in view of the provisions of Section 1A and 1B of the Civil Procedure Rules it would only defeat the objectives of expeditious disposal of the suit if the affidavit is expunged.
The Defendant’s Counsel can be allowed to enter the Memorandum of Appearance and for the Replying Affidavit to be validated on record. This is possible since no step has been taken on the service of the summons to date. I find that this is a matter of procedure and technicality and there is no prejudice to the Plaintiff for the record to be put in order.
I therefore, overrule the Preliminary Objection and direct that the Defendant do enter appearance within the next 15 days after which the Replying Affidavit shall be deemed to be duly filed and properly on record. In default, the replying Affidavit shall stand expunged from the record, and the Plaintiff shall be at liberty to proceed as it deems fit.
The Defendant shall pay the costs of this application.
DATED AND DELIVERED AT MOMBASA ON THIS 4TH DAY OF MARCH, 2011.
M.K. IBRAHIM
JUDGE