[2005] KEHC 2396 (KLR)
The court found that the issue of whether the plaintiff's further affidavit filed on 21st September 1998 introduced a new cause of action had already been conclusively determined by Justice Waki in his ruling dated 30th June 1999. Justice Waki held that the affidavit did not depart from the original pleadings or...
Source-derived case information.
- Citation
- [2005] KEHC 2396 (KLR)
- Parties
- Plaintiff: Michael John Bechet; Defendant: UAP Provincial Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1310 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Objection to the defendant's submission on new cause of action overruled; preliminary objection to proceed on other grounds.
- Legal Topics
- Preliminary Objection, Cause of Action, Affidavit Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael John Bechet
Plaintiff
UAP Provincial Insurance Co. Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's further affidavit filed on 21st September 1998 introduced a new cause of action contrary to the pleadings.
- 2 Whether the issue of a new cause of action raised by the further affidavit had already been determined by a previous ruling.
Ratio Decidendi
The court found that the issue of whether the plaintiff's further affidavit filed on 21st September 1998 introduced a new cause of action had already been conclusively determined by Justice Waki in his ruling dated 30th June 1999. Justice Waki held that the affidavit did not depart from the original pleadings or cause of action but merely clarified and focused on the original affidavits. Therefore, the court held that the defendant was precluded from raising the same argument again, and the preliminary objection could proceed only on other grounds, not on the issue of a new cause of action being introduced by the further affidavit.
Court Disposition
Objection to the defendant's submission on new cause of action overruled; preliminary objection to proceed on other grounds.
Orders
- The defendant is precluded from raising the issue of a new cause of action being introduced by the plaintiff's further affidavit filed on 21st September 1998.
- The defendant may proceed to argue its preliminary objection on other grounds.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION MILIMANI Civil Case 1310 of 2001MICHAEL JOHN BECHET ……………..………………….PLAINTIFF VERSUS UAP PROVINCIAL INSURANCE CO. LTD………...…..DEFENDANT
RULING This is a ruling on the plaintiff’s objection to the defendant’s submission that the plaintiff’s affidavit filed in court on 21st September 1998 raised new cause of action contrary to the pleaded facts in the plaint.
The defendant’s counsel in advancing his preliminary objection stated the plaintiff in response to the defendant’s affidavit filed a further affidavit on 21st September 1998, with a new cause of action. Mr. Imandar objected to this submission on the basis that Justice Waki, as then was, ruled in this matter and found that the affidavit did not raise new cause of action.
In my ruling I find indeed that there was findings made by Justice Waki on whether the said affidavit raised new causes of action. The judge in his ruling dated 30th June 1999 found as follows: -
“The affidavit makes no departure from the original pleadings and cause of action nor does it contradict the original affidavits in support of the main application…..suffice it to say that I do not see a departure from the original cause of action, but a further clarification of and focus on the original affidavits…….”
That being the finding of Justice Waki the court will not allow the defendant to reopen that argument again. The defendant will proceed to argue its preliminary objection, without raising that issue, of a new cause of action being raised by the plaintiff’s further affidavit, filed in court on 21st September 1998.
Dated and delivered this 9th day of June 2005.
MARY KASANGO JUDGE