[2007] KEHC 1503 (KLR)
The court held that while Order 1 Rule 8 of the Civil Procedure Rules requires notice to be given to all interested parties in a representative suit, the responsibility to direct the manner of such notice lies with the court, not the plaintiff. The failure to comply with the notice requirement does not render the...
Source-derived case information.
- Citation
- [2007] KEHC 1503 (KLR)
- Parties
- Plaintiff: Monica Wambui Githaiga (Legal Representative of the Estate of Gakuru s/o Karutha); Plaintiff: William Kamau Bora; Plaintiff: Njeri Kabui; Plaintiff: Stephen Wagucha Wamaru; Plaintiff: Kamau Wagucha; Plaintiff: Gathoni Kanyoi; Defendant: Joseph Nderitu Wachira; Defendant: Harrison Waweru Ndirangu; Defendant: Cyrus King’ori Gitahi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 76 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MM Kasango
- Legal Topics
- Representative Suits, Preliminary Objection, Order 1 Rule 8, Notice Requirements
- 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
Monica Wambui Githaiga (Legal Representative of the Estate of Gakuru s/o Karutha)
Plaintiff
William Kamau Bora
Plaintiff
Njeri Kabui
Plaintiff
Stephen Wagucha Wamaru
Plaintiff
Kamau Wagucha
Plaintiff
Gathoni Kanyoi
Plaintiff
Joseph Nderitu Wachira
Defendant
Harrison Waweru Ndirangu
Defendant
Cyrus King’ori Gitahi
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to comply with Order 1 Rule 8 of the Civil Procedure Rules renders the suit fatally defective.
- 2 Whether the suit should be struck out for lack of notice to other interested parties in a representative action.
- 3 Whether the responsibility to direct notice under Order 1 Rule 8 lies with the plaintiff or the court.
Ratio Decidendi
The court held that while Order 1 Rule 8 of the Civil Procedure Rules requires notice to be given to all interested parties in a representative suit, the responsibility to direct the manner of such notice lies with the court, not the plaintiff. The failure to comply with the notice requirement does not render the suit fatally defective or warrant its striking out. The preliminary objection was therefore misconceived, as the omission was not attributable to the plaintiff but to the absence of court directions. The court dismissed the preliminary objection and directed the plaintiff to advertise the institution of the suit in a daily newspaper with nationwide coverage to notify any...
Court Disposition
preliminary objection dismissed
Orders
- The defendant's preliminary objection is dismissed with costs to the plaintiff.
- The plaintiff is directed to advertise the institution of this suit in one daily newspaper with countrywide coverage, inviting any interested party to participate in the suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 76 of 2002
MONICA WAMBUI GITHAIGA Legal Representative of the Estate
of Gakuru s/o Karutha)……….........….…........................................…..1ST PLAINTIFF/RESPONDENT
WILLIAM KAMAU BORA..…..………..........................................……...2ND PLAINTIFF/RESPONDENT
NJERI KABUI……………….….....…..........................................….…...3RD PLAINTIFF/RESPONDENT
STEPHEN WAGUCHA WAMARU…....….......................................…...4TH PLAINTIFF/RESPONDENT
KAMAU WAGUCHA……………….….........................................…..…..5TH PLAINTIFF/RESPONDENT
GATHONI KANYOI……………….…....................................…..……..…6TH PLAINTIFF/RESPONDENT
Versus
JOSEPH NDERITU WACHIRA………….....................................….......1ST DEFENDANT/APPLICANT
HARRISON WAWERU NDIRANGU…..........................................…......2ND DEFENDANT/APPLICANT
CYRUS KING’ORI GITAHI…………........................................…........….3RD DEFENDANT/APPLICANT
RULING
When this case came up for hearing the defence counsel raised a preliminary objection in the following terms:
1. THAT the suit offends the provisions of Order 1 Rule 8(1) and (2) of Civil Procedure Rules in that being a representative suit the other members of the group were not notified of the institution of the same.
2. THAT the suit is therefore incompetent and should be struck out with costs.
Order I Rule 8(1)(2)provides as follows:
“Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued, or may be authorized by the court to defend in such suit, on behalf of or for the benefit of all persons so interested.
The court shall in such case direct the plaintiff to give notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.”
Defendant’s counsel in raising the preliminary objection, referred to paragraph two of the Plaintiff’s plaint. In that paragraph the plaintiff pleaded that the Defendants are representatives of a group of villagers purporting to construct an access road that cuts through the Plaintiff’s land. He was of the view that in view of that pleading Rule 8(1)(2) should have been complied with. In response the Plaintiff’s counsel was of the view that the preliminary objection is an abuse of the court process. The basis of making that statement was because the group with which the Defendants operated with are unknown. The Plaintiff in filing this suit filed it against the specific persons who entered her land. Those persons had entered the land on the invitation of the assistant chief.
Having considered the Plaint and the defence I find that it was necessary for the Plaintiff to have complied with the provisions of Rule 8. The failure however, to comply with that rule does not make the suit fatal. In other words it cannot lead to the striking out of the suit as sought by the Defendant in the objection raised. It is important to remember that a preliminary objection is raised on a point of law and whose determination leads to the dismissal of the suit. Considering the above I am of the view that the Defendant’s preliminary objection is misconceived. Subrule 2 of Order 1 provides that it is for the court to give directions to the Plaintiff on the manner in which the institution of the suit should be brought to the notice of the other relevant parties. The failure of the court to give that direction cannot be blamed on the Plaintiff to the extent of striking out the Plaintiff’s suit. The court does hereby dismiss the Defendant’s preliminary objection for there was no basis for raising that objection when the rules clearly show that the responsibility was on the court to give directions. The preliminary objection is therefore dismissed with costs to the Plaintiff. The court further does hereby direct the Plaintiff do advertise the institution of this suit in one daily Newspaper with countrywide coverage. Such notice should invite any interested party to participate in this suit. Orders accordingly.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 9th day of October 2007.
M. S. A. MAKHANDIA
JUDGE