Civil Procedure - directions be given herein to the effect that every party in these proceedings to bear their own costs

Parbat & Co Ltd v Kenyatta University

High Court, at Mombasa November 30, 2000

Waki J

Civil Case No 109 of 1991

Civil Practice and Procedure – stay of execution – applicable procedural sections of the law – non-compliance with the sections – effect of noncompliance

The defendant took out a Chamber Summons seeking two substantive orders: namely,

i) That there be stay of execution of the court orders of 29.5.95 and 26.6.95 pending a determination by the Court of the defendant’s indebtedness to the plaintiff in terms of the said court orders;

ii) That the Court do determine the indebtedness if any of the defendant to the plaintiff pursuant to the court orders of 29.5.95 and 26.9.95 aforesaid.

The plaintiff raised a preliminary objection on the grounds that; applications under section 3A of the Civil Procedure Act and order XXI rule 18 must be filed under a Notice of Motion and not under Chamber Summons; the decree had not been sent from another Court to the Court for the purposes of execution proceedings and consequently order XXI rule 22 was completely inapplicable to the matter, the issuance of warrants was a matter that was dealt with by the Registrar/Deputy Registrar of the Court and any party aggrieved thereby can only apply for review for the Deputy Registrar.

Held:

1. A preliminary objection should be in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

2. If an application is brought under different rules one calling for a Notice of Motion and another calling for a Chamber Summons application, then the party applying has a choice to use a Notice of Motion procedure. If during the course of the hearing the party abandons the application under a rule which entitles him to apply by way of a Notice of Motion, the application does not become incompetent.

3.The Court has discretion to consider the substance of an application, the defect in form notwithstanding.

4.The special powers of the Registrar on execution are limited to formal orders and not to contentions applications.

Preliminary objection dismissed.

Cases

1. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

2. Kinyanjui, Johnson Joshua & another v Rachel Wahitu Thande & others Civil Appeal No 284 of 1997

3. Athumani v Halfani [1962] EA 761

Statutes

1. Civil Procedure Act (cap 21) sections 3A, 34

2. Civil Procedure Rules (cap 21 Sub Leg) order XXI rules 18, 22, 25; order XLVIII rule 3, 5 (x) (2)

3. Code of Civil Procedure, 1908 [INDIA] order XXI rules 26, 29

Advocates

Mr Gikandi for the Plaintiff

Mr Mureithi for the Defendant