[2008] KEHC 593 (KLR)
The court held that all defendants, including the 2nd, 3rd, 4th, and 5th, were properly represented by their advocate, Sichangi & Co. Advocates, who had filed a joint defence and opposition. Therefore, it was not correct to claim that these defendants had not responded or were unrepresented, and no orders could be...
Source-derived case information.
- Citation
- [2008] KEHC 593 (KLR)
- Parties
- Plaintiff: Mwangi Charles Mahinda; Plaintiff: Edward Kings Onyancha Maina; Defendant: Kenya Commercial Bank Ltd.; Defendant: Susan Outa Mudhune; Defendant: Susan Nkirote Omanga; Defendant: Peter Wanyaga Muthoka; Defendant: Ernst & Young
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 246 of 2008
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Application to enter orders against defendants 2, 3, 4, and 5 in default is denied; paragraph 10 of the affidavit is struck out; application to proceed to hearing.
- Legal Topics
- Affidavit Compliance, Default Judgment, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwangi Charles Mahinda
Plaintiff
Edward Kings Onyancha Maina
Plaintiff
Kenya Commercial Bank Ltd.
Defendant
Susan Outa Mudhune
Defendant
Susan Nkirote Omanga
Defendant
Peter Wanyaga Muthoka
Defendant
Ernst & Young
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether orders can be entered against defendants 2, 3, 4, and 5 for failure to respond to the application.
- 2 Whether the replying affidavit complies with Order 18 of the Civil Procedure Code.
- 3 Whether any part of the affidavit should be struck out for being scandalous.
Ratio Decidendi
The court held that all defendants, including the 2nd, 3rd, 4th, and 5th, were properly represented by their advocate, Sichangi & Co. Advocates, who had filed a joint defence and opposition. Therefore, it was not correct to claim that these defendants had not responded or were unrepresented, and no orders could be entered against them in default. Regarding the affidavit, the court found that except for paragraph 10, which contained scandalous material about the advocate and others and was struck out, the rest of the affidavit complied with Order 18 of the Civil Procedure Code as the source of information was disclosed. The application was allowed to proceed to hearing with the rest of the...
Court Disposition
Application to enter orders against defendants 2, 3, 4, and 5 in default is denied; paragraph 10 of the affidavit is struck out; application to proceed to hearing.
Orders
- No orders to be entered against defendants 2, 3, 4, and 5 in default.
- Paragraph 10 of the replying affidavit is struck out as scandalous.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 246 of 2008
MWANGI CHARLES MAHINDA....................................................1ST PLAINTIFF
EDWARD KINGS ONYANCHA MAINA……………………….2ND PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD.……........…………….... 1STDEFENDANT
SUSAN OUTA MUDHUNE……….…..………………………..2ND DEFENDANT
SUSAN NKIROTE OMANGA………..…..……………………..3RD DEFENDANT
PETER WANYAGA MUTHOKA…..…..……. ………………..4TH DEFENDANT
ERNST & YOUNG……………………..………………………..5TH DEFENDANT
RULING
On 29. 10. 2008, this matter came up for hearing. The applicant who is appearing in person stated that he had received response to his application from the first Respondent, Kenya Commercial Bank Ltd. but no response had been received from 2nd , 3rd , 4th and 5th Defendants. He therefore applied for prayers against Defendants to be entered as they do not oppose application.
According to the record all Defendants are represented by one firm of Advocates namely, Sichangi & Co. Advocates who filed a joint defence and the said firm was appointed by notice of appointment dated 29th May, 2008.
Mr. Sichangi was present in Court on 29. 10. 2008 to argue the application on their behalf and the documents of opposition was filed jointly on behalf of all. It cannot therefore be said that the three parties were not represented and court orders cannot therefore be entered against them without hearing their Counsel.
A perusal of the Pleadings showing that the defendants 2, 3, 4, and 5 were acting under the instruction and as employee of the company, first defendant Mr. Sichangi informed the court that he is acting for them.
The other issue raised by Defendant’s Counsel is that the affidavit“Replying affidavit of 2nd Plaintiff/Applicant” that affidavit does not comply with the provisions of Order 18 Civil Procedure Code and it is scandalous. A perusal of Order 18 Civil Procedure Code shows that (Rule 3) an affidavit shall be confined to such facts as the deponent is able on his own knowledge to prove, provided that on interlocutory matters or by leave of court an affidavit may contain statements of information and belief showing the sources and ground thereof.
An affidavit which shall unnecessarily set forth matters of hearsay or argumentative or copies of or extracts from documents shall cause the party filing the same to pay costs. Rule 6 – a court may order to be struck out from any affidavit any matter which is scandalous, irrelevant or oppressive.
In this affidavit, leave to file was granted by court. However maters contained in paragraph 3, 4, 5, 6, 7, 8, and 9 do comply with Order 18. The source of the information is shown by the deponent in paragraph 19, of the affidavit. Paragraph 10 of the said affidavit contains matters that are scandalous of the Advocate appearing for Defendants and others and the same is struck out of the record.
In the circumstances, the Court finds and orders that the Defendants other than the first Defendant are represented in court by their Advocate and no orders can be entered against them in default.
Regarding the Replying Affidavit, the source of information is disclosed and therefore Order 18 Civil Procedure Code is complied with. However, paragraph 10 of the said affidavit contains scandalous matters and the said is struck out. The rest of paragraphs shall remain on record.
The application shall proceed to hearing
DATED this 7th day of November 2008.
JOYCE N. KHAMINWA
JUDGE