[1976] KEHC 19 (KLR)

[1976] KEHC 19 (KLR)

The court held that the originating summons was fundamentally defective because it was not drawn inter partes as required by the Civil Procedure Rules and relevant practice forms. The defect was not curable by the subsequent filing of affidavits by beneficiaries or by naming parties after the fact. The requirement that all parties whose rights may be affected be given an opportunity to appear is substantive, not merely procedural. The court found that the administrator could not unilaterally change the nature of the defective summons by adding parties at a later stage. As such, the originating summons was dismissed with costs to the respondent.

Citation
[1976] KEHC 19 (KLR)
Parties
Applicant: Administrator of the Estate of Noor Bibi (Deceased); Respondent: Mrs Kurshid Jamal
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
22 June 1976
Case Number
Civil Case 2002 of 1974
Procedural Posture
Originating Summons / Preliminary Objection, Judgment on Form of Summons
Outcome
originating summons dismissed with costs
Judges
ARW Hancox
Legal Topics
Originating Summons Form, Joinder of Parties, Service of Process
Source Language
English
Civil Procedure Originating Summons Form Joinder of Parties Service of Process

Case Brief

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Parties

Administrator of the Estate of Noor Bibi (Deceased)

Applicant

Mrs Kurshid Jamal

Respondent

Procedural Posture

Originating Summons / Preliminary Objection, Judgment on Form of Summons

Legal Issues

  1. 1 Whether the originating summons must be drawn inter partes to include all parties whose rights may be affected.
  2. 2 Whether the defect in the form of the originating summons is curable by subsequent affidavits or joinder.
  3. 3 Whether the proceedings can continue when the originating summons is not in proper form.

Ratio Decidendi

The court held that the originating summons was fundamentally defective because it was not drawn inter partes as required by the Civil Procedure Rules and relevant practice forms. The defect was not curable by the subsequent filing of affidavits by beneficiaries or by naming parties after the fact. The requirement that all parties whose rights may be affected be given an opportunity to appear is substantive, not merely procedural. The court found that the administrator could not unilaterally change the nature of the defective summons by adding parties at a later stage. As such, the originating summons was dismissed with costs to the respondent.

Court Disposition

originating summons dismissed with costs

Orders

  • The originating summons is dismissed.
  • Costs awarded to the respondent.