[2023] KERRT 1182 (KLR)
The Tribunal held that the omission of a signature on the plaint was a procedural defect that did not go to the substance of the case. The Plaintiff had acted in person and under distress, and all other accompanying documents were properly signed. The Tribunal emphasized that Article 159(2)(d) of the Constitution...
Source-derived case information.
- Citation
- [2023] KERRT 1182 (KLR)
- Parties
- Plaintiff: Neesey Muthoni Ndirangu; Defendant: Cajentan Ombere t/a Welco Services International; Defendant: Little Vineyards Auctioneers; Defendant: Muita Chacha
- Court
- Rent Restriction Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E021 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- HK KORIR
- Legal Topics
- Striking Out Pleadings, Procedural Irregularities, Rent Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Neesey Muthoni Ndirangu
Plaintiff
Cajentan Ombere t/a Welco Services International
Defendant
Little Vineyards Auctioneers
Defendant
Muita Chacha
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaint dated 10th January, 2022 should be struck out for lack of signature.
- 2 Whether the 1st Defendant is entitled to release of Kshs.153,578 deposited in the Tribunal account.
- 3 Whether procedural defects in pleadings should override substantive justice.
Ratio Decidendi
The Tribunal held that the omission of a signature on the plaint was a procedural defect that did not go to the substance of the case. The Plaintiff had acted in person and under distress, and all other accompanying documents were properly signed. The Tribunal emphasized that Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. The defect was therefore curable, and the plaint was deemed properly filed. The application to strike out the plaint and for release of the deposited sum was dismissed, and the matter was directed to proceed to hearing on the merits.
Court Disposition
application dismissed
Orders
- The 1st Defendant's application dated 3rd August, 2022 is dismissed.
- The plaint dated 10th January, 2022 is deemed properly filed.
Full Case Text
Judgment text and source record
32 paragraphs
Ndirangu v Cajentan Ombere t/a Welco Services International & 2 others (Tribunal Case E021 of 2022) [2023] KERRT 1182 (KLR) (20 April 2023) (Ruling)
Neutral citation: [2023] KERRT 1182 (KLR)
Republic of Kenya
In the Rent Restriction Tribunal
Tribunal Case E021 of 2022
HK KORIR, Chair
April 20, 2023
Between
Neesey Muthoni Ndirangu
Plaintiff
and
Cajentan Ombere t/a Welco Services International
1st Defendant
Little Vineyards Auctioneers
2nd Defendant
Muita Chacha
3rd Defendant
Ruling
1. By an Application dated 3rd August, 2022 the 1st Defendant prayed for release of the Sum of Kshs.153. 578/- which was deposited in the Tribunal account pursuant to orders issued on 9th May, 2022
2. He also prayed that the Plaint dated 10th January, 2022 be struck out with cost to the Plaintiff.
3. The Application was supported by an affidavit sworn by Cajetan Ombere the 1st Defendant property manager who deponed that the Tenant has not paid rent for January-April, 2022 before vacating on 10th May, 2022 after paying rent for May.
4. He further depones that with the Plaintiff hearing paid rent for one month in May, 2022, it is morally correct and lawful that he settles the rent for January to April, 2022.
5. Further that the Plaint dated 10th January, 2022 was not signed and therefore defective and bad in law.
6. The Plaintiff vide her replying affidavit dated29th August,2022 deponed that she is a layman who had initially acted in person while in distress and still under post-natal pressure having just delivered a baby at the time.
7. That in any event all the other documents accompanying the plaint including the verifying affidavit were properly signed and hence it was an innocent mistake which should not be used against her and is curable under Sec 15 (1) of the Civil Procedure Act and Civil Procedure Rules2010 order rule 15 (1)
8. The Plaintiff further deponed that she had never been in occupation of the premises since 10th January up to by which time she had settled all the rent due and in good time. That she had given the Defendant notice to vacate which the Defendants ignored and did not respond.
9. The Plaintiff also deponed that Tribunal and indeed any court cannot make final orders without giving parties an opportunity to ventilate their case as sought by the Defendants application.
10. Having considered both parties pleadings as filed together with the written submissions and authorities cited the Tribunal agrees with the Plaintiffs position that the Defendants cannot have his cake and eat it at the same time by seeking to benefit from orders made on account of alleged defective pleadings
11. Article 159 (1) enjoins the Tribunal to administer justice without undue regard to procedural technicalities and places heavy premium on substantive Justice
12. Accordingly, the Defendants application is dismissed and parties directed to take a date for main hearing of the suit with the plaint dated 10th deemed as properly filed.
13. Each party shall bear their own costs of the application
RULING DELIVERED AND ISSUED IN CHAMBER ON THIS 20TH DAY OF APRIL, 2023 IN ACCORDANCE WITH THE COVID-19 PRACTICE RULESSIGNEDHILLARY K. KORIRCHAIRMANRENT RESTRICTION TRIBUNAL.