Macharia V Wanyoike  EKLR
|Civil Suit 128 of 1971||28 Dec 1971|
Cecil Henry Ethelwood Miller
High Court at Nairobi (Milimani Law Courts)
Macharia v Wanyoike
Macharia v Wanyoike  eKLR
Macharia v Wanyoike
High Court, at Nairobi December 28, 1971
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.
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.
No case referred to.
Civil Procedure Rules
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.