[2001] KEHC 505 (KLR)
The court held that although Order VII rule 1(1)(e) of the Civil Procedure Rules is couched in mandatory language, failure to comply with it is not fatal to the suit as the defect can be cured by amendment. The preliminary objection raised by the Defendant was sustained, but the Plaintiff was granted leave to amend...
Source-derived case information.
- Citation
- [2001] KEHC 505 (KLR)
- Parties
- Plaintiff: Margaret Wanjiru Muraya; Defendant: Florence Mwangi & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 434 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Preliminary objection sustained; Plaintiff granted leave to amend Plaint; Defendant awarded thrown away costs.
- Judges
- ARM Visram
- Legal Topics
- Pleadings Requirements, Amendment of Pleadings, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margaret Wanjiru Muraya
Plaintiff
Florence Mwangi & Another
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to include an averment as required by Order VII rule 1(1)(e) of the Civil Procedure Rules is fatal to the suit.
- 2 Whether the Plaintiff should be granted leave to amend the Plaint to comply with procedural requirements.
Ratio Decidendi
The court held that although Order VII rule 1(1)(e) of the Civil Procedure Rules is couched in mandatory language, failure to comply with it is not fatal to the suit as the defect can be cured by amendment. The preliminary objection raised by the Defendant was sustained, but the Plaintiff was granted leave to amend the Plaint to comply with the procedural requirement. The court exercised its discretion to allow the amendment, emphasizing that procedural defects should not automatically lead to the striking out of suits where they can be remedied without prejudice to the other party.
Court Disposition
Preliminary objection sustained; Plaintiff granted leave to amend Plaint; Defendant awarded thrown away costs.
Orders
- Plaintiff granted leave to amend the Plaint to comply with Order VII rule 1(1)(e) of the Civil Procedure Rules.
- Defendant awarded costs thrown away.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI
civ case 434 of 01
MARGARET WANJIRU MURAYA ………………………PLAINTIFF
- V E R S U S –
FLORENCE MWANGI & ANOTHER …………………DEFENDANTS
R U L I N G
Mr. Kanya for the Defendant has raised a preliminary objection to this suit on ground that the Plaint does not comply with order VII rule 1(1)(e) of the Civil Procedure Rules. He prays that the suit be struck out. That rule reads as follows:-
“(Order VII) 1 (1) The Plaint shall contain the foll owing particulars -
(e) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the Plaintiff and the Defendant over the same subject matter.”
The Plaint on record does not in fact comply with that requirement. Mr. Kihara for the Plaintiff on his part asks that he should be allowed time to amend the defect. I see no reason why he should not be allowed to do so.
Although Order VII rule 1 (1) (e) is couched in mandatory language, failure to comply with it is not fatal as the same can be cured by amendment. The Defendant’s preliminary objection is, therefore, sustained subject to the order allowing the Plaintiff leave to amend. The Defendant shall have the costs thrown away.
DATED and DELIVERED at NAIROBI this 4th day of April, 2001.
ALNASHIR VISRAM
JUDGE