[2022] KEHC 2182 (KLR)
The court found that the originating summons, which initiated the suit for division of matrimonial property, was neither signed nor dated by the advocates who drew and filed it. Execution of pleadings is essential as it authenticates the document and gives it legal validity. Without a valid, executed originating...
Source-derived case information.
- Citation
- [2022] KEHC 2182 (KLR)
- Parties
- Applicant: LWN; Respondent: IMM
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Matrimonial Cause 1 of 2021
- Procedural Posture
- Matrimonial Cause / Interlocutory Application Ruling
- Outcome
- suit struck out for incompetence
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Property, Pleadings Validity, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
LWN
Applicant
IMM
Respondent
Procedural Posture
Matrimonial Cause / Interlocutory Application Ruling
Legal Issues
- 1 Whether the originating summons, being undated and unsigned, is a valid pleading capable of sustaining the suit.
- 2 Whether the suit should be struck out for incompetence due to the defective originating summons.
Ratio Decidendi
The court found that the originating summons, which initiated the suit for division of matrimonial property, was neither signed nor dated by the advocates who drew and filed it. Execution of pleadings is essential as it authenticates the document and gives it legal validity. Without a valid, executed originating summons, there is no competent suit before the court. Consequently, the court held that the suit was incompetent and dead on arrival, warranting its striking out in entirety. The absence of a valid primary pleading meant that the suit could not be sustained in law.
Court Disposition
suit struck out for incompetence
Orders
- The undated and unsigned originating summons filed on 22nd July 2021 is struck out.
- The entire suit is struck out for incompetence.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MATRIMONIAL CAUSE NO. 1 OF 2021
LWN.....................................APPLICANT
VERSUS
IMM................................RESPONDENT
RULING
1. What I am called upon to determine is the Motion, dated 22nd July 2021, which seeks a variety of interlocutory reliefs, pending hearing and determination of the suit.
2. These are matrimonial proceedings, for division of matrimonial property, initiated on 22nd July 2021, by way of an originating summons.
3. The application was placed before Farah Amin J on 22nd July 2021, and temporary orders were granted. Directions were given on 3rd August 2021, for the canvasing of the application by way of written submissions. When the matter was mentioned on 30th September 2021, none had been filed, and none were placed before me, and so I reserved the matter for ruling, to be delivered on 4th February 2022. On 4th February 2022, the ruling was not ready.
4. In the course of preparing the ruling, I have established that the originating pleading, being the originating summons on record, is not signed by the Advocates who drew and filed it, neither is it dated. Execution of pleadings goes to the core of their existence. It authenticates them. Lack of execution invalidates them. As it is, the suit, as it stands, is dead on in water. It was dead on arrival. In simple terms there is no suit.
5. I am inclined to strike out the pleading, which would result in the striking out of the entire suit. That is what I shall do. The undated and unsigned originating summons, filed herein on 22nd July 2021, is hereby struck out. As a consequence, the entire suit is hereby struck out for incompetence, for it cannot stand without the primary pleading. There shall be no order as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 18TH OF FEBRUARY, 2022
W. MUSYOKA
JUDGE
Mr. Erick Zalo, Court Assistant.
Mr. Matete, instructed by Messrs. Matete Mwelese & Co. Advocates, for the applicant.
Issa Mulimba Matala, respondent, in person.