[2000] KECA 396 (KLR)
The Court of Appeal held that the suit, being one for trespass, was improperly commenced by originating summons under Order 36 rule 3, which does not cover such matters. The procedure adopted was fundamentally defective, rendering the suit incompetent. The High Court's decree was therefore set aside and substituted...
Source-derived case information.
- Citation
- [2000] KECA 396 (KLR)
- Parties
- Appellant: Virginia Wambui Chege; Respondent: Nyamu Waitathu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 111 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; suit struck out
- Legal Topics
- Trespass, Originating Summons Procedure, Striking Out Suit
- 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
Virginia Wambui Chege
Appellant
Nyamu Waitathu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the suit for trespass was properly instituted by originating summons under Order 36 rule 3.
- 2 Whether the suit was competent before the High Court.
Ratio Decidendi
The Court of Appeal held that the suit, being one for trespass, was improperly commenced by originating summons under Order 36 rule 3, which does not cover such matters. The procedure adopted was fundamentally defective, rendering the suit incompetent. The High Court's decree was therefore set aside and substituted with an order striking out the originating summons. The appeal was allowed on this basis, with no order as to costs.
Court Disposition
appeal allowed; suit struck out
Orders
- The appeal is allowed.
- The decree of the superior court is set aside.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, LAKHA & BOSIRE, JJ.A.)
CIVIL APPEAL NO. 111 OF 1999
BETWEEN
VIRGINIA WAMBUI CHEGE ................................ APPELLANT
AND
NYAMU WAITATHU ....................................... RESPONDENT
(Appeal against the Judgment & Decree of the High Court of kenya at Nairobi
(Mr. Justice Khamoni) dated 24th November, 1997
in
H.C.C.C. NO. 4787 OF 1998)
****************
JUDGMENT OF THE COURT
The suit giving rise to this appeal was in trespass and ought to have been instituted by way of a regular suit. It clearly does not fall within the parview of Order 36 rule 3 under which it was purportedly commenced. This is unsustainable and clearly incompetent. Accordingly, the suit is incompetent.
The appeal, therefore, succeeds.
The appeal, therefore, is allowed and the decree of the superior court is set aside and substituted by an order striking out the originating summons.
There will be no order as to costs.
Dated and delivered at Nairobi this 7th day of June, 2000.
R.O. KWACH
..................
JUDGE OF APPEAL
A.A. LAKHA
..................
JUDGE OF APPEAL
S.E.O. BOSIRE
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR