[2010] KEHC 1305 (KLR)
The court held that the failure to annex a supporting affidavit and a certified copy of the register to the originating summons, as required by Order XXXVI Rule 3 (3) (d) and Order L Rule 16 (3), is a fatal defect. The omission is not a minor technicality but goes to the root of the matter, rendering the originating...
Source-derived case information.
- Citation
- [2010] KEHC 1305 (KLR)
- Parties
- Applicant: Wellingtone Wakwabubi; Respondent: Eliud Njata Murefu
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 47 of 2006
- Procedural Posture
- Commercial Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; originating summons struck out with costs to respondent
- Judges
- FN Muchemi
- Legal Topics
- Originating Summons, Supporting Affidavit Requirements, Certified Copy of Register, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wellingtone Wakwabubi
Applicant
Eliud Njata Murefu
Respondent
Procedural Posture
Commercial Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the originating summons is fatally defective for lack of a supporting affidavit and certified copy of register.
- 2 Whether failure to comply with Order XXXVI Rule 3 (3) (d) and Order L Rule 16 (3) is a minor or fatal defect.
Ratio Decidendi
The court held that the failure to annex a supporting affidavit and a certified copy of the register to the originating summons, as required by Order XXXVI Rule 3 (3) (d) and Order L Rule 16 (3), is a fatal defect. The omission is not a minor technicality but goes to the root of the matter, rendering the originating summons fatally defective. The court relied on precedent and the clear wording of the rules, finding that the applicant's failure to comply with these mandatory requirements could not be excused. Consequently, the preliminary objection was upheld and the originating summons was struck out with costs to the respondent.
Court Disposition
preliminary objection upheld; originating summons struck out with costs to respondent
Orders
- The originating summons dated 22/07/2006 is struck out for being fatally defective.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Commercial Civil Case 47 of 2006
WELLINGTONE WAKWABUBI………………….. APPLICANT
~VRS~
ELIUD NJATA MUREFU.………………….. RESPONDENT
RULING
This is a ruling on a preliminary objection dated11/11/2006raised by Mr. Situma on behalf of the Respondent. It is based on the ground that the originating summons (O.S) is not supported by a supporting affidavit and a certified copy of register. The originating summon is not in compliance with Order XXXVI Rule 3 (3) (d) and also Order L Rule 16 (3). Mr. Omukunda for the Applicant conceded to the preliminary objection but pleaded with the court not to strike out the original summons for such a minor defect.
Order XXXVI rule 3 (3) (d) provides:
“The summons shall be supported by an affidavit to which a certified copy of title to the land in question is annexed.”
Mr. Situma referred the court to Hccc No.83 of 2001 (O.S) where my brother Justice Sergon struck out the originating summons for failure to comply with Order XXXVI Rule (3) (d) (2). The Applicants omitted to annex certified copies of title to the summons rendering it fatally defective.
What the Applicant has annexed herein is a copy of title deed issued quite some while ago from its appearance. The law requires that a certified copy of register be annexed to the supporting affidavit. Failure to annex the certified copy of register and a verifying affidavit is not a minor defect as submitted by the counsel for the Applicant. It is a major defect which is fatal to the summons.
On9/7/2009, the Applicant was granted leave to amend the originating summons. An amended originating summons dated 22/01/09 was filed on the same date. The summon has no supporting affidavit or a certified copy of register annexed to it. The summon is not in compliance with Order XXXVI rule 3 (3D).
I find that the preliminary objection is merited and I uphold it accordingly. The originating summons dated22/07/2006 is hereby struck out with costs to the Respondent for being fatally defective.
F. N. MUCHEMI
JUDGE
Ruling dated and delivered on the 13th day of October, 2010 in the presence of Mr. Situma for the Resopondent.
N. MUCHEMI
JUDGE