[2008] KEHC 374 (KLR)
The court found that the verifying affidavit attached to the plaint was sufficient for the purposes of Order VII Rule 1(2), as it affirmed the truth and correctness of the plaint's averments. The court further held that the issue of limitation could not be determined at this stage without proper evidence and...
Source-derived case information.
- Citation
- [2008] KEHC 374 (KLR)
- Parties
- Plaintiff: National Oil Corporation of Kenya Ltd; Defendant: Roy Spares and Hauliers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 42 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed
- Legal Topics
- Striking Out of Suit, Limitation of Actions, Delay in Prosecution, Verification of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Oil Corporation of Kenya Ltd
Plaintiff
Roy Spares and Hauliers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out for being fatally defective and incompetent.
- 2 Whether the suit is barred by limitation under the Limitation Act.
- 3 Whether the delay in prosecuting the suit warrants dismissal.
Ratio Decidendi
The court found that the verifying affidavit attached to the plaint was sufficient for the purposes of Order VII Rule 1(2), as it affirmed the truth and correctness of the plaint's averments. The court further held that the issue of limitation could not be determined at this stage without proper evidence and cross-examination of witnesses. The court also noted that, despite the delay, both parties had been active in the proceedings, and therefore the delay did not warrant striking out the suit. Consequently, the application to strike out the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application to strike out the suit is dismissed.
- All costs occasioned to the applicant in this suit be assessed and paid to the applicant within 21 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 42 of 2006
NATIONAL OIL CORPORATION OF KENYA LTD………...……… PLAINTIFF
VERSUS
ROY SPARES AND HAULIERS LTD……………………………..DEFENDANT
RULING
Notice of Motion dated 05. 06. 2007 seeking to strike out the suit and costs of suit.
The application is based on the annexed affidavit of Shemir O. Yakub and Ogoti Nyangena and on grounds that the suit is fatally defective and incompetent. And that claimant has failed and/or neglected to prosecute the case more than one year after close of pleadings. And that the suit is scandalous, frivoulous and vexations.
Legal provisions relied upon is firstly Order VII Rule 1 (2) “The plaint shall be accompanied by an affidavit sworn by the Plaintiff verifying the correctness of the amendments contained in the plaint. Here the plaint dated 07. 02. 2006 is accompanied by affidavit of the legal officer of the Plaintiff.
In paragraph 2 thereof, she swears that the averments of the plaint are true and correct. In my view, this is sufficient in respect of verifying affidavit by 19. 10. 1999 dispute was in existence. This suite was filed on 07. 02. 2006. This was several months after expiration of Limitation Act.
I have read the Replying Affidavit and perused the exhibits annexed. Each party is trying to dispute the liability. Issues of limitation cannot be decided without proper evidence and cross-examination of witnesses.
On the issue of the delay caused in bringing this matter to a hearing, it will be noted that this application was filed on 26. 07. 07 and in between parties have been quite active.
I therefore dismiss this application and order all the costs occasioned to the applicant in this suit be assessed and shall be paid to the Applicant within a period of 21 days from today.
The Plaintiff is ordered to place the suit on hearing list within the next 45 days.
It is so ordered.
DATED this 18th day of November, 2008.
JOYCE N. KHAMINWA
JUDGE