[2005] KEHC 505 (KLR)
The court found that the plaintiffs failed to comply with the mandatory requirement under Order VII Rule 1(e) of the Civil Procedure Rules by not including an averment that there was no other suit pending and no previous proceedings between the parties over the same subject matter. This procedural defect rendered...
Source-derived case information.
- Citation
- [2005] KEHC 505 (KLR)
- Parties
- Plaintiff: Robert Mwaura and 299 others (Malimungu Jua Kali Association); Defendant: Moses Chepkwony and 5 others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 523 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- Plaintiffs' suit struck out with costs to the defendants.
- Judges
- JL Osiemo
- Legal Topics
- Striking Out of Pleadings, Procedural Compliance, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Mwaura and 299 others (Malimungu Jua Kali Association)
Plaintiff
Moses Chepkwony and 5 others
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaintiffs' plaint should be struck out for failure to comply with Order VII Rule 1(e) of the Civil Procedure Rules.
- 2 Whether the suit is an abuse of the process of the court due to procedural defects.
Ratio Decidendi
The court found that the plaintiffs failed to comply with the mandatory requirement under Order VII Rule 1(e) of the Civil Procedure Rules by not including an averment that there was no other suit pending and no previous proceedings between the parties over the same subject matter. This procedural defect rendered the plaint incompetent. As a result, the court exercised its discretion to strike out the suit as it constituted an abuse of the process of the court. The absence of any response or opposition from the plaintiffs further supported the decision to grant the defendants' application. The suit was accordingly struck out with costs awarded to the defendants.
Court Disposition
Plaintiffs' suit struck out with costs to the defendants.
Orders
- The plaintiffs' suit is struck out for non-compliance with Order VII Rule 1(e) of the Civil Procedure Rules.
- Costs of the suit are awarded to the defendants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE 523 OF 2001
ROBERT MWAURA AND 299…………………PLAINTIFFS/RESPONDENTS
VERSUS
MOSES CHEPKWONY AND 5 OTHERS…….DEFENDANTS/APPLICANTS
RULING
By way of a plaint dated 29th March 2001 and amended on 29th March 2003 the plaintiffs Rover Mwaura and 299 others registered as MALIMUNGU JUA KALI ASSOCIATION brought this suit against the defendants seeking:
(a) A permanent injunction restraining the defendants either by themselves, their agents, servants and/ or employees from evicting entering, demolishing, wasting, trespassing, alienating, and/ or in any other way interfering with LR NO. KANGUNDO ROAD/EMBAKASI/18288 NAIROBI.
(b) A declaration that the plaintiffs herein are the legal and rightful owners of LR NO. KANGUNDO ROAD/EMBAKASI/18288 NAIROBI.
(c) General damages
(d) Costs of the suit
On the 24th May, 2005, the 1st, 2nd and 3rd defendants brought this application by way of Chamber Summons under Order VI Rule 13 and 16 of the Civil procedure Rules and Section 3A of the Civil Procedure Act seeking orders that the plaintiffs plaint be struck out on the ground that the plaint is otherwise an abuse of the process of the court.
Counsel for the defendants submitted that the plaintiffs’ plaint should be struck out for being incompetent and defective and as it offends the provisions of Order VII Rule 1(e) of the Civil Procedure Rules which provides:
“O. VII (1) The plaint shall contain the following particulars:
(a)……………………………………….
(b)……………………………………….
(c)……………………………………….
(d)……………………………………….
(c)An averment that there is no other suit pending and that there have been no previous proceedings in any court between the plaintiff and defendant over the same subject matter.”
The plaintiffs were served but they never appeared to defend the application nor did they file any replying affidavit.
After the submissions by counsel for the defendants and also after having perused the pleadings it is clear and I am satisfied that there was no compliance of the provisions of Order VII Rule (1) (e) of the Civil Procedure Rules. This therefore renders the plaintiffs’ suit incompetent and the same is struck out with costs to the defendants.
Delivered and dated at Nairobi this 22nd day of September 2005.
J.L.A. OSIEMO
JUDGE