[2004] KEHC 279 (KLR)
The court held that the plaintiffs failed to comply with the mandatory procedural requirements of Order 50 Rule 16 of the Civil Procedure Rules by not filing grounds of opposition or a replying affidavit within the prescribed time. The court found that raising a preliminary objection based on Section 35 of the...
Source-derived case information.
- Citation
- [2004] KEHC 279 (KLR)
- Parties
- Defendant: Rahito Trading Co.; Defendant: Little Dubai Co.; Plaintiff: Al Muftah; Plaintiff: Sharif M.A. Omar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 119 of 2004
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Notice of Motion
- Outcome
- Application considered unopposed; hearing to proceed ex parte.
- Legal Topics
- Notice of Motion, Preliminary Objection, Affidavit Defects, Procedural Compliance
- 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
Rahito Trading Co.
Defendant
Little Dubai Co.
Defendant
Al Muftah
Plaintiff
Sharif M.A. Omar
Plaintiff
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Notice of Motion
Legal Issues
- 1 Whether the plaintiffs were required to file grounds of opposition or a replying affidavit under Order 50 Rule 16 Civil Procedure Rules to oppose the notice of motion.
- 2 Whether a preliminary objection based on alleged defects in the supporting affidavit could substitute for procedural compliance with Order 50 Rule 16.
- 3 Whether Section 35 of the Advocates Act rendered the application fatally defective, excusing the plaintiffs from filing opposition papers.
Ratio Decidendi
The court held that the plaintiffs failed to comply with the mandatory procedural requirements of Order 50 Rule 16 of the Civil Procedure Rules by not filing grounds of opposition or a replying affidavit within the prescribed time. The court found that raising a preliminary objection based on Section 35 of the Advocates Act did not excuse the plaintiffs from their procedural obligations under the Civil Procedure Rules. Since Section 35 is not a procedural provision governing the filing of opposition to motions, the plaintiffs' reliance on it was misplaced. Consequently, the defendants' application was deemed unopposed and the hearing was to proceed ex parte.
Court Disposition
Application considered unopposed; hearing to proceed ex parte.
Orders
- The defendants' application dated 5/5/04 is considered unopposed.
- The hearing of the application shall proceed ex parte.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT 119 OF 2004
(MILIMANI HCC 167 OF 2003)
RAHITO TRADING CO. ………………………...…………….….. 1ST DEFENDANT
LITTLE DUBAI CO. ………………………….…………………… 2ND DEFENDANT
VERSUS
AL MUFTAH …………………………………...…………………….. 1ST PLAINTIFF
SHARIF M.A. OMAR …………………………..…………………… 2ND PLAINTIFF
Coram: Before Hon. Justice Mwera
Kimatu for the Plaintiff/Respondent
J. Munyithya for the Defendant/Applicant
Court clerk – Sango
R U L I N G
On 6-9-04 the defendants filed a notice of motion under O. 12 r.6, O. 50 r. 1 Civil Procedure Rules and S. 3A Civil Procedure Act for orders that judgment be entered here for Sh.1,575,699/- on admission with costs to the defendants/applicants.
By an affidavit of service sworn on 29-11-09 it was deponed that the application was duly served on the plaintiffs’ lawyers M/s Arimi Kimathi & Co. Advocates of Nairobi. This was not in dispute and the hearing of the application came on due date.
On 5-11-04 the plaintiffs filed a notice of preliminary objection to the said application stating that its supporting affidavit was fatally defective and thus not sustainable in law because it contravened the provisions of, so the court was told S.35 Advocates Act (Cap. 16)
Come the hearing day and Mr. J. Munyithya implored this court to consider and deal with the notice of motion in question as unopposed under O. 50 r. 16 Civil Procedure Rules because no grounds of opposition or a replying affidavit had been filed 3 clear days before the hearing day or at all. That this was a procedural lapse on the part of the plaintiffs even if their filing of a preliminary objection was a legally allowed and proper thing to do. That the notice of preliminary objection could not be taken in lieu of filing either grounds of opposition and/or an affidavit in reply as required under O. 50 r. 16. That although the respondents would still file the preliminary objection, they had to file papers in opposition and in time. That that had not been done.
Mr. Kimathi conceded that no papers in opposition were filed because his clients were entitled to bring the said preliminary point in law on the basis that once the application did not comply with S.35 Advocates Act, they had no obligation to reply in opposition to document that was invalid. That all that warranted the plaintiffs stand at this point.
O. 50 r. 16 Civil Procedure Rules says:
“16. (1) Any respondent who wishes to oppose any motion or other application shall file and serve on the applicant a replying affidavit or a statement of grounds of opposition, if any, not less than three clear days before the date of hearing.
(2) ---------------------------- (3) -----------------------.”
As for S.35 (Cap.16), it refers to endorsing of instruments with name and address of the makers of such instruments (under S.34 relating to conveyancing, company formation, partnership agreements, and dissolution, filing or opposing grants, legal proceedings).
It was not quite clear to this court as to what was desired by Mr. Kimathi’s invoking of this S.35 particularly that he declined to have his preliminary objection come in as a ground of opposition and also because the court was not entertaining that objection at this point at all. The issue however was whether the plaintiffs had, as per procedure, complied with O. 50 r.16 Civil Procedure Rules if they desired to oppose the notice of motion in issue.
In this court’s view the plaintiffs had not complied with O. 50 r. 16 Civil Procedure Rules. The Civil Procedure Rules govern the way and course to approach/bring proceedings of a civil nature before the court while S.35 is not a procedural provision at all. Accordingly the defendant’s application dated 5/5/04 is considered unopposed.
In this court’s view the plaintiffs should have complied with the procedural aspects of the matter and brought up the substantive matters of law either as grounds of opposition or preliminary objection.
In sum the application in question is considered unopposed and its hearing thereof shall proceed ex parte.
Orders delivered on 25th November, 2004.
J.W. MWERA
JUDGE