[2005] KEHC 2168 (KLR)

[2005] KEHC 2168 (KLR)

The court held that the application was incompetent because the applicants had instituted the proceedings by way of chamber summons in a miscellaneous application, which is not a mode prescribed for the type of relief sought. The Civil Procedure Act and Rules require that suits be instituted by plaint unless a...

Source-derived case information.

Citation
[2005] KEHC 2168 (KLR)
Parties
Applicant: Peter Mwema Kahoro; Applicant: Samuel Kungu (suing as the administrator of the estate of Joseph Kahoro-deceased); Respondent: Benson Maina Githethuki
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
27 April 2005
Case Number
Civil Miscellaneous Application 86 of 2005
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Outcome
Application struck out as incompetent with costs to the respondent.
Legal Topics
Limitation of Actions, Procedural Irregularity, Institution of Suits, Interlocutory Injunctions
Source Language
english
Civil Procedure Commercial and Corporate Limitation of Actions Procedural Irregularity Institution of Suits Interlocutory Injunctions

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Parties

Peter Mwema Kahoro

Applicant

Samuel Kungu (suing as the administrator of the estate of Joseph Kahoro-deceased)

Applicant

Benson Maina Githethuki

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the applicants' claim is statute barred under the Limitation of Actions Act.
  2. 2 Whether the application is fatally defective for non-compliance with Order L Rule 15 of the Civil Procedure Rules.
  3. 3 Whether proceedings for an injunction can be properly instituted by chamber summons in a miscellaneous application.

Ratio Decidendi

The court held that the application was incompetent because the applicants had instituted the proceedings by way of chamber summons in a miscellaneous application, which is not a mode prescribed for the type of relief sought. The Civil Procedure Act and Rules require that suits be instituted by plaint unless a different procedure is expressly provided. The court found that the applicants were not entitled to seek an injunction in this manner. The preliminary objections regarding limitation and non-compliance with Order L Rule 15 were dismissed: limitation could not be determined at this stage due to disputed facts, and non-compliance with the warning requirement was not fatal since the...

Court Disposition

Application struck out as incompetent with costs to the respondent.

Orders

  • The application dated 2nd February, 2005 and filed on 4th February, 2005 is struck out as incompetent.
  • Applicants to pay costs to the respondent.