[2004] KEHC 2542 (KLR)
The court held that the absence of the defendant, despite being duly served and given an opportunity to address the procedural issue regarding the authority of the next of friend, justified proceeding with the hearing of the main suit. The court relied on the precedent set in Kedowa Saw Mills & Another v Dina...
Source-derived case information.
- Citation
- [2004] KEHC 2542 (KLR)
- Parties
- Plaintiff: Pamela Jesca Kiura; Defendant: Jacob Njiru Rware
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2131 of 2001
- Procedural Posture
- Civil Case / Further Ruling
- Outcome
- Suit to proceed to hearing; costs in the cause.
- Legal Topics
- Next of Friend Authority, Order 31 Rule 1 Cpr, Order 9b Rule 3a Cpr, Default of Appearance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamela Jesca Kiura
Plaintiff
Jacob Njiru Rware
Defendant
Procedural Posture
Civil Case / Further Ruling
Legal Issues
- 1 Whether the suit is properly before the court in the absence of authority filed by the next of friend under Order 31 rule 1 CPR at the time of filing suit.
- 2 Whether the defendant's failure to appear after being duly served affects the progression of the suit.
Ratio Decidendi
The court held that the absence of the defendant, despite being duly served and given an opportunity to address the procedural issue regarding the authority of the next of friend, justified proceeding with the hearing of the main suit. The court relied on the precedent set in Kedowa Saw Mills & Another v Dina Mogaka, which allowed for the authority under Order 31 rule 1 CPR to be filed with an amended plaint, thereby excusing strict compliance at the time of initial filing. The defendant's lack of interest, as evidenced by non-appearance, warranted setting the suit down for hearing. Costs were ordered to be in the cause.
Court Disposition
Suit to proceed to hearing; costs in the cause.
Orders
- The suit is set down for hearing.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
9 paragraphs
1) Civil Practice and Procedure 2) Order 31 r 1CPR 3) Adjourned ruling to await defendant arguments. 4) Defendant duly served but failed to appear 5) Held: The defendant not being interested in the matter, the suit be set down for hearing. 6) Case law: Kedowa Saw Mills & Another v Dina Mugaka CA (Nk) 163/97 IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2131 OF 2001 PAMELA JESCA KIURA …………………………………. PLAINTIFF VERSUS JACOB NJIRU RWARE ………………………………….. DEFENDANT FURTHER RULING
In my ruling dated the 4. 11. 02 I allowed the defendant (who was absent) to address me on the point of “there being no authority filed by the next of friend under order 31 r 1 CPR at time of filing suit whether the suit is properly before court?”
The defendant on being duly served failed to attend the court. The said hearing to proceed under order 9b r3 (a) CPR on the main suit. The authority of:-
Kedowa Saw Mills & Another v Dina Mogaka
CA(NK))163/97
excused the request of order 31 r 1 CPR where it was filed together with an amended plaint.
The costs will be in the cause.
Dated this 2nd day of June 2004 at Nairobi. M.A. ANG’AWA JUDGE
S. Adera Advocate for the plaintiff No appearance for advocate for the defendant.