M v M P

High Court, at Nairobi 14th, 21st, 23rd June, 18th September 1978

Miller J

Civil Case No 927 of 1977

Divorce - ancillary provisions - divorce by talak - agreement as to ancillary matters - agreement providing for limited access to court - jurisdiction of court in respect of ancillary matters.

The applicant and the respondent, who were both members of the Sunni sect, were married according to Mohamedan law in November 1975. In 1977 the applicant filed a plaint seeking dissolution of the marriage. On the summons for directions, objection was raised to the jurisdiction of the court. Although the plaint was not formally withdrawn, a consent judgment was entered in July 1978 in the terms of a consent letter signed by the parties. The letter recited that the respondent had divorced the applicant by pronouncing the talak in accordance with Mohamedan law. The letter further stated that the applicant was to have custody of the child of the marriage (who was not to be taken out of the jurisdiction without the consent of the court), and that the respondent would pay maintenance.

Also, it stated that in the event of either party remarrying, the other party would have a right of access to the Court for a variation of the provisions as to custody and maintenance. In the last paragraph, the consent letter stated that the applicant relinquished all claims in relation to the marriage and its dissolution. On a subsequent application, the applicant sought the permission of the court, inter alia, to remove the child from the jurisdiction.

Held:

Refusing the application, that since specific provision had been made for matters appertaining to marriages between Mohamedans by the Mohamedan Marriage, Divorce and Succession Act, the Court was precluded from applying the general law in relation to ancillary matters relating to such matters; in the absence of any relevant rules, such matters should be approached as matters appertaining to contract and the provisions of the consent agreement should not be overridden.

No cases were referred to in the judgment.

Chamber summons

M , the daughter of the late M S, applied to Court in Civil Case No 927 of 1977 for permission to take Mohamed Nabil, the child of her marriage to M P (the respondent), the son of  M N, out of the jurisdiction of the court, for maintenance and for the payment of the Shs 10,000 haq mehr. The facts are set out in the judgment.

JM Khaminwa (instructed by Khaminwa & Khaminwa) for the Applicant.

YP Vohra (instructed by Vohra & Vohra) for the Respondent.

Cur adv vult

Shashikani Badian v Shree Sauatan Dharam Sabha

High Court, Nairobi 5th June, 18th September 1978

Miller J

Miscellaneous Civil Case No 50 of 1978

Arbitration – award - application to set aside – procedure – originating summons issued instead of chamber summons – arbitration rules, rule 16 – Civil Procedure Act (cap 21), section 100.

An application to the High Court to set aside an arbitration award should be made, in accordance with rule 16 of the Arbitration Rules, by chamber summons. If such an application is made by originating summons it is inappropriate, notwithstanding the provisions of section 100 of the Civil Procedure Act, to permit it to be amended.

Adonia v Mutekanga [1970] EA 429 distinguished.

Case referred to in judgment:

1. Adonia v Mutekanga [1970] EA 429.

Originating summons

Dr Shashikani V Badian applied to the High Court (Miscellaneous Civil Case No 50 of 1978) to set aside an award made by Mr MS Sharma on 7th October 1977 in arbitration proceedings between himself and the respondent, Shree Sauatan Dharam Sabha. The facts are set out in the judgment.

JJ Patel for the Applicant.

Satish Gautama for the Respondent.

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.