[2014] KEHC 6327 (KLR)
The court held that the failure to execute (sign) the amended Originating Summons by the plaintiff's advocates rendered the pleading incompetent. The court emphasized that execution of pleadings is a cardinal principle of civil procedure and is not a mere technicality that can be cured by Article 159 of the...
Source-derived case information.
- Citation
- [2014] KEHC 6327 (KLR)
- Parties
- Plaintiff: R N M; Defendant: W M K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 6 of 2007
- Procedural Posture
- Civil Suit / Ruling on Regularization of Pleadings
- Outcome
- Plaintiff directed to regularize the amended Originating Summons by signing it; file returned to registry for compliance.
- Judges
- DN Musyoka
- Legal Topics
- Pleadings Execution, Originating Summons, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R N M
Plaintiff
W M K
Defendant
Procedural Posture
Civil Suit / Ruling on Regularization of Pleadings
Legal Issues
- 1 Whether an unsigned amended Originating Summons is competent and can form the basis of a judgment.
- 2 Whether Article 159 of the Constitution cures the defect of unexecuted pleadings.
Ratio Decidendi
The court held that the failure to execute (sign) the amended Originating Summons by the plaintiff's advocates rendered the pleading incompetent. The court emphasized that execution of pleadings is a cardinal principle of civil procedure and is not a mere technicality that can be cured by Article 159 of the Constitution. As such, the court could not proceed to judgment on the basis of an unexecuted pleading. The proper course was to require the plaintiff to regularize the pleading by signing it before any further proceedings could be taken.
Court Disposition
Plaintiff directed to regularize the amended Originating Summons by signing it; file returned to registry for compliance.
Orders
- The file is returned to the registry.
- The plaintiff shall regularize the amended Originating Summons dated 3rd May 2011 by signing it.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 6 OF 2007
R N M………………….….PLAINTIFF
VERSUS
W M K………………...DEFENDANT
RULING
I note that the suit herein was commenced by way of an Originating Summons dated 6th February 2007.
The said Originating summons was ordered amended on 3rd May 2012. There is a draft amended Originating Summons dated 3rd May 2011 on record. The same was deemed in the order of 3rd May 2011 as duly filed.
The said amended Originating Summons dated 3rd May 2011 is not signed by the advocates for the plaintiff.
It is a cardinal principle of civil procedure that pleadings must be duly executed by the party filing them or by the advocates acting for them. Unexecuted pleadings are incompetent and a suit founded on such pleadings is equally incompetent. The failure to execute pleadings cannot be wished away under Article 159 of the Constitution. Execution of pleadings goes to the core of the suit.
In view of the foregoing, I am unable to prepare judgment based on unexecuted pleadings. To do justice to the parties, I hereby direct that this file be returned to the registry. Thereafter the plaintiff shall regularize the amended Originating Summons dated 3rd May 2011 by signing it. The matter shall thereafter be mentioned before me for directions on a date to be fixed at the registry.
DATED, SIGNED and DELIVERED at NAIROBI this 14th DAY OF March, 2014.
W. M. MUSYOKA
JUDGE