[2004] KEHC 111 (KLR)
The court held that, in the absence of a formal application and supporting affidavit evidence from the Plaintiffs/Respondents, there was no basis to depart from the standard procedure of determining motions to strike out on affidavit evidence. The court declined to allow oral evidence at this stage and directed that...
Source-derived case information.
- Citation
- [2004] KEHC 111 (KLR)
- Parties
- Plaintiff: Simon Igecha & 510 Others; Defendant: Kenya Breweries Limited; Defendant: Hon. The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1285 of 2003
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Procedure for Hearing a Motion to Strike Out Plaint
- Outcome
- Application for oral evidence declined; motion to strike out plaint to proceed on affidavits.
- Legal Topics
- Striking Out of Pleadings, Affidavit Evidence, Oral Evidence in Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Igecha & 510 Others
Plaintiff
Kenya Breweries Limited
Defendant
Hon. The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Procedure for Hearing a Motion to Strike Out Plaint
Legal Issues
- 1 Whether the court should allow parties to adduce oral evidence in support of or in opposition to a motion to strike out the plaint.
- 2 Whether the application should proceed on the basis of affidavits only.
Ratio Decidendi
The court held that, in the absence of a formal application and supporting affidavit evidence from the Plaintiffs/Respondents, there was no basis to depart from the standard procedure of determining motions to strike out on affidavit evidence. The court declined to allow oral evidence at this stage and directed that the motion to strike out the plaint should proceed on the basis of the affidavits already filed. However, the Plaintiffs/Respondents were granted liberty to make a formal application for oral evidence if they so wished.
Court Disposition
Application for oral evidence declined; motion to strike out plaint to proceed on affidavits.
Orders
- The Notice of Motion dated 19th August 2004 shall proceed to hearing on a date to be fixed at the Registry on the basis of affidavits filed.
- The Plaintiffs/Respondents are at liberty to make a formal application for oral evidence if they so wish.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS) CIVIL SUIT 1285 OF 2003
SIMON IGECHA & 510 OTHERS …………...............………………PLAINTIFFS
Versus
KENYA BREWERIES LIMITED ……………......…….………1ST DEFENDANT
HON. THE ATTORNEY GENERAL …………......…………..2ND DEFENDANT
RULING
In the Notice of Motion dated the 19th August 2004, the 1st Defendant/Applicant seeks orders including that the plaint herein be struck out.
At the hearing of the Motion on the 22nd November 2004, Mr. Rumba Kinuthia for the Plaintiffs/Respondents made preliminary submissions that in his opinion, the parties should be permitted to lead oral evidence at the hearing of the Motion and should not be restricted to relying on affidavits. The basis of learned counsel’s request was that a similar order had been made by Ransley, J in Nairobi HCCC 378 of 2003 in an application to strike out the plaint therein.
Mr. Peter Gachuhi, learned counsel for the 1st Defendant/Applicant, objected on the grounds that the circumstances in HCCC 378 of 2003 aforesaid were substantially different and that there is nothing in the present application to justify viva voceevidence.
As counsel for Plaintiffs/Respondents has not made a formal application and there is therefore no evidence before me by wat of affidavits to enable me determine whether or not oral evidence would be of assistance to the court in relation to the Motion presently before the court, I decline to rule in favor of the Plaintiffs/Respondents and order that the notice of Motion dated the 19th August 2004 do proceed to hearing on date to be fixed at the Registry on the basis of affidavits filed in connection therein. The Plaintiffs/Respondents are, however, at liberty to make a formal application should they wish to pursue their plea.
Dated and delivered at Nairobi this 26th day of November 2004.
P. Kihara Kariuki
Ag. Judge