[1998] KEHC 208 (KLR)
The court found that the application was incompetent because the applicant sought orders that could not all be granted under Chamber Summons. The applicant failed to choose the appropriate procedural form for the reliefs sought. The preliminary objection raised by the plaintiffs was upheld as it went to the root of...
Source-derived case information.
- Citation
- [1998] KEHC 208 (KLR)
- Parties
- Plaintiff: Peter Kagwi & 3 Others; Defendant: Wanjiku Gichire & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3200 of 1997
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Chamber Summons
- Outcome
- application struck out as incompetent; liberty to file afresh
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out of Suit, Preliminary Objection, Chamber Summons, Counter Claim Procedure
- 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
Peter Kagwi & 3 Others
Plaintiff
Wanjiku Gichire & Another
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Chamber Summons
Legal Issues
- 1 Whether the application brought by Chamber Summons is competent in seeking both striking out of suit and grant of counterclaim.
- 2 Whether the preliminary objection raised by the plaintiffs is valid and goes to the root of the application.
Ratio Decidendi
The court found that the application was incompetent because the applicant sought orders that could not all be granted under Chamber Summons. The applicant failed to choose the appropriate procedural form for the reliefs sought. The preliminary objection raised by the plaintiffs was upheld as it went to the root of the application, leading to the striking out of the application with costs. The applicant was granted liberty to bring a fresh application in the proper form.
Court Disposition
application struck out as incompetent; liberty to file afresh
Orders
- The application is struck out with costs to the plaintiffs.
- The applicant is at liberty to bring a fresh application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 3200 OF 1997
PETER KAGWI & 3 OTHERS..............................................PLAINTIFF
VERSUS
WANJIKU GICHIRE & ANOTHER.....................................DEFENDANT
R U L I N G
This is an application brought by way of Chamber Summons seeking orders that the plaintiff’s suit be struck out and that the court be pleased to grant the first defendant’s counter claim. Preliminary objection has been raised by the plaintiffs which I believe goes to the root of the application. The orders sought by the defendants are both under Chamber Summons and Notice of Motion. Not all can be granted under Chamber Summons and the applicant must make a decision in which or for which form should move the court.
As it is now, the application is incompetent and is accordingly struck out with costs. The applicant is at liberty to bring a fresh application. Orders accordingly.
Dated and delivered at Nairobi this 31st day of July, 1998
A. MBOGHOLI MSAGHA
JUDGE
Mr Nyamodi for plaintiff/respondent
Mr Muindi for defendant/applicant