Macharia v Wanyoike

High Court, at Nairobi December 28, 1971

Miller J

Civil Suit No 128 of 1971

Civil practice and procedure - pleading - contents of a pleading - formal requirements of pleadings - pleading by reference - effect of not repeating the paragraphs of a pleading which a party adopts - striking out pleading - pleading tending to delay the fair trial of an action - when a pleading is contrary to a rule - striking out a defence - necessity of entering judgment as consequence of striking out a defence.

The plaintiff filed a plaint in which he claimed a sum of money from eight defendants as joint contractors. The advocate representing five of the defendants filed a defence to the plaint on the March 11, 1971. Later he filed a document in which he stated that three of the five defendants thereby adopted the defence dated March 11, 1971. It was conceded that this document was a pleading, and a defence by reference. On an application by the plaintiff seeking the striking out of the pleading and entering judgment against the three defendants on the ground that the pleading by reference did not contain a statement in a concise form of the material facts on which the defendants relied for defence, it was argued for the defendants that they did not have to repeat the relevant paragraphs of the defence of March 11, 1971.

Held :

1. That the proposed defence of the three defendants as pleaded did not state the material facts relied upon, and will delay fair trial of the action, and it is accordingly struck out; but the court will not enter judgment against the defendants, but instead grant them leave to file a new defence.

2. It is a cardinal rule of pleading, that every pleading must contain a statement in a concise form of the material facts on which the party pleading relies, accordingly, a party wishing to adopt a pleading already filed must repeat in his pleading the paragraphs of the pleading he intends to adopt.

3. A short-cut is accepted or applied only to expedite and not to delay justice; but a time-absorbing short-cut in breach of a fundamental rule may be struck out or judgment entered against the offending party but where the court considers that its discretion will not be justly exercised, it will not enter judgment, but instead it may strike out the pleading but give leave to such a party to file a new and proper pleading.

The application was partially allowed.

Cases

No case referred to.

Statutes

Civil Procedure Rules

Editorial Note

The current edition of the legislation considered is now cited as The Civil Procedure Rules (Cap 21, Sub Leg). The rules of Order VI referred have since been rewritten and differently renumbered, but the substance has been retained.

Adalja v Adalja

High Court, at Nairobi March 11, 1971

Chanan Singh J

Civil Case No 132 of 1971 (OS)

Divorce - institution of proceedings - leave to present a petition within three years of the marriage - grounds of exceptional depravity - instances of exceptional depravity – circumstances in which leave ought to be given - grounds for abridgement of the statutory period before commencement of proceedings for divorce - effect of finding of fact that a ground exists.

The applicant sought leave to file a petition for the dissolution of the marriage before the statutory three years since the celebration of the marriage had expired, and alleged continued adultery as well as cruelty and desertion by the respondent. The adultery alleged was with one woman and was not denied, and was supplemented by acts of cruelty. The respondent had no feelings for the applicant and his affections lay for another girl with whom he was going about openly. The applicant was cut off from her relatives who were all outside Kenya. There was no suggestion that the marriage could succeed.

Held :

1. Unless three complete years have elapsed between the date of the marriage and the date of filing a petition for divorce, leave must be obtained to present the petition within three years of the marriage; and the court may abridge the three years’ period if it is satisfied that the case is one of exceptional depravity.

2. That the continued adultery of the respondent supplemented by acts of cruelty amounted to exceptional depravity, and it was useless to make the parties wait for the statutory three years to expire before proceedings for divorce could be instituted by the applicant.

3. At the hearing of an application for leave to file a petition for divorce before the statutory period, the court only makes a provisional finding of fact that a ground exists for abridging the statutory period.

The application was allowed.

Cases

No case referred to.

Statutes

No statute referred to.

Advocates

Mr Shah for the Respondent