[2012] KEHC 3434 (KLR)
The court determined that the defendants' Further Amended Defence and Counterclaim was irregular and incompetent due to the absence of a signature, date, and proof of payment of filing fees, as required by Order 2 rule 16 of the Civil Procedure Rules. The court held that it would be improper to proceed to judgment...
Source-derived case information.
- Citation
- [2012] KEHC 3434 (KLR)
- Parties
- Plaintiff: Stephen Raphael Garama; Defendant: Robert Baya Mramba & 9 Others
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 79 of 2006
- Procedural Posture
- Civil Suit / Ruling on Pleadings and Directions Before Judgment
- Outcome
- Directions issued for regularization of pleadings; costs of the day to the plaintiff.
- Judges
- CW Meoli
- Legal Topics
- Pleadings Regularization, Counterclaim Procedure, Trespass to Land, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Raphael Garama
Plaintiff
Robert Baya Mramba & 9 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Pleadings and Directions Before Judgment
Legal Issues
- 1 Whether the defendants' Further Amended Defence and Counterclaim is competent in the absence of signature, date, and proof of payment of filing fees.
- 2 Whether the court should proceed to judgment in light of irregular pleadings by the defendants.
- 3 What directions should be given to regularize the pleadings and progress the matter.
Ratio Decidendi
The court determined that the defendants' Further Amended Defence and Counterclaim was irregular and incompetent due to the absence of a signature, date, and proof of payment of filing fees, as required by Order 2 rule 16 of the Civil Procedure Rules. The court held that it would be improper to proceed to judgment on the basis of such irregular pleadings. To ensure procedural fairness and compliance with the rules, the court directed the defendants to file a duly signed and dated Further Amended Defence and Counterclaim, pay the assessed filing fees, and comply within fourteen days. The matter would then be mentioned to confirm compliance and set a fresh judgment date. This approach...
Court Disposition
Directions issued for regularization of pleadings; costs of the day to the plaintiff.
Orders
- Defendants to file within fourteen days a duly signed and dated Further Amended Defence and Counterclaim corresponding with the approved draft annexed to the Chamber Summons dated 10th November, 2010.
- Defendants to pay the assessed filing fees on the said counterclaim.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT 79 OF 2006
STEPHEN RAPHAEL GARAMA...........................................................................................PLAINTIFF
VERSUS
ROBERT BAYA MRAMBA & 9 OTHERS.....................................................................DEFENDANTS
RULING AND DIRECTIONS
1. The Plaintiff, claiming to be the registered owner of the land parcel described as KILIFI/JIMBA/85 located in Watamu brought this suit seeking vacant possession against the defendants. He described the defendants as trespassers who unlawfully invaded and have continued to remain on the land despite his persistent entreaties.
2. With the court’s leave, the defendants filed a Further Amended Defence and Counterclaim which is neither dated nor signed. Nor is there evidence that the filing fees in respect of the said Further Amended Defence and Counterclaim were paid as ordered by the court on 28th March, 2011. Order 2 rule 16 of the Civil Procedure Rules provides that:-
“Every pleading shall be signed by an advocate, or recognized agent…or by the party if he sues or defends in person.”
3. Although the plaintiff did file his Further Amended Defence to the Counterclaim on 20th March, 2011, I think it is necessary for the Defendants’ pleadings to be regularized before judgment can be pronounced on the dispute. While this may cause some delay, the court is wary of proceeding on the basis of what may well be an incompetent counterclaim.
4. I direct, therefore, that the defendants do file within 14 (fourteen) days of today’s date, a duly signed and dated Further Amended Defence and Counterclaim corresponding with the approved draft annexed to the Chamber Summons dated 10th November, 2010. Additionally, the fees payable on the said counterclaim are to be assessed and paid by the Defendants. Thereafter, the matter will be mentioned on 25th June, 2012 to confirm compliance and to give a fresh judgment date.
5. It is regrettable that the above anomalies have come to light after the close of the hearing. This is partly due to the fact that this case had been partly heard by my predecessor Omondi J. while leave to amend was granted to the Defendants after the evidence of PW1 had been taken.
Delivered and signed this30thday ofMay, 2012 in the presence of Mr. Angima for the defendants. Mr. Lughanje for plaintiff.
C. W. MEOLI
JUDGE
COURT- Today’s costs to the plaintiff.
C. W. MEOLI
JUDGE