[1998] KECA 128 (KLR)
The court held that while the notice of motion was defective for failing to state the grounds as required by Rule 42(1) of the Court of Appeal Rules, such a defect is not fatal and can be cured by amendment. The court exercised its discretion to allow the respondent to amend the notice of motion to comply with the...
Source-derived case information.
- Citation
- [1998] KECA 128 (KLR)
- Parties
- Appellant: Peter M. Echaria; Respondent: Priscilla N. Echaria
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 247 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection to Notice of Motion
- Outcome
- Leave granted to amend the notice of motion; application not struck out.
- Legal Topics
- Notice of Motion, Procedural Defects, Amendment of Pleadings
- 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 M. Echaria
Appellant
Priscilla N. Echaria
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection to Notice of Motion
Legal Issues
- 1 Whether a notice of motion that fails to state the grounds of the application is incurably defective under Rule 42(1) of the Court of Appeal Rules.
- 2 Whether such a defect can be cured by amendment.
Ratio Decidendi
The court held that while the notice of motion was defective for failing to state the grounds as required by Rule 42(1) of the Court of Appeal Rules, such a defect is not fatal and can be cured by amendment. The court exercised its discretion to allow the respondent to amend the notice of motion to comply with the procedural requirements, emphasizing that procedural defects of this nature should not automatically result in the striking out of applications where the defect is curable and an application for amendment is made.
Court Disposition
Leave granted to amend the notice of motion; application not struck out.
Orders
- Leave is granted to the respondent to amend the notice of motion to comply with Rule 42(1) of the Court of Appeal Rules.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
civ app 247 of 97
PETER M. ECHARIA...........................................APPELLANT
VERSUS
PRISCILLA N. ECHARIA...................................RESPONDENT
Court of Appeal - Court of Appeal Rules, Rule 42 (1) - Notice of Motion - whether incurably defective by reason of failure to state the grounds of the application. Rule 42(1) of the Court of Appeal Rules provides that “all applications to the Court shall be by motion which shall state the grounds of the application”. A Notice of Motion which does not set out the grounds on which it is based is defective but the defect is curable by amendment. G. Kamau Kuria for the Appellant Martha Karua for the Respondent.
RULING OF THE COURT
The Respondent has applied that this appeal be struck out as incompetent. Dr. Kamau for the Appellant objected to the notice of motion as being incurably defective for failing to comply with Rule 42(1) of the Rules of this Court. That rule states that “all applications to the Court shall be by motion, which shall state the grounds of the application”. He submitted that this requirement being mandatory in its language it is not enough for the grounds to be given only in the supporting affidavit. The respondent should know the case he/she has to answer. Ms. Karua for the applicant/respondent submitted that the ground is stated in the body of the application” as incompetent”, and if that is not sufficient she asked to be granted leave to amend the application.
We agree that the Notice of Motion is defective but the defect is curable, and, for that reason, and Ms. Karua having applied for leave to amend the notice of motion, we grant leave for the Respondent to amend the notice of motion so as to comply with the requirements of Rule 42(1) of the Rules of the Court.