[RULING] Civil Practice and Procedure-res judicata-where in the previous suit between the same parties over the same subject matter a decree was issued following a judgment by consent-whether the present suit thus falls within the rule of res judicata

Gulam & another v Jirongo

High Court, at Nairobi March 2, 2004

Ringera J

Civil Suit No 393 of 2003

Civil Practice and Procedure - affidavit – verifying affidavit - to be confined to matters within the deponent’s knowledge - whether a court has a discetion not to strike out a plaint which is accompanied by a defective verifying affidavit.

Civil Practice and Procedure – striking out defence – court’s discretion.

By Chamber Summons under order VI rules 13 (1) (b) (c) and (d) and 16 of the Civil Procedure Rules, the plaintiff sought orders that the defendant’s defence be struck out on the grounds that it did not disclose any defence in law and that it was an abuse of the process of the Court, was scandalous, frivolous and vexatious and would delay the fair trial of the action. The application was opposed by means of a replying affidavit. The defendant’s advocate further filed a notice of a preliminary objection to the application. The substance of the preliminary objection was that the application was premised upon a suit which was fatally defective and did not lie. Both the application and the preliminary objection were heard together.

Held:

1. A preliminary point of law may be taken at any stage of the proceedings.

2. A verifying affidavit should be a proper affidavit in the first instance. An affidavit which merely says the deponent is conversant with the facts and verifies the correctness of the averments in the plaint is not a proper affidavit because one may be conversant with the facts from personal knowledge or information.

3. An affidavit by one plaintiff verifying the correctness of the facts of a plaint, where the plaintiffs are two, and where the deponent does not state that he is making it on behalf of himself and the other plaintiff and the authority and basis on which he would so do on behalf of that other plaintiff, is defective.

4. The Court has a discretion not to strike out a plaint which is accompanied by a defective verifying affidavit. The effected party may make an oral application for the exercise of the Court’s discretion and the Court should exercise its discretion as appropriate in the light of the circumstances.

5. Rules of Procedure should be seen as hand maidens of justice and not its mistress and, accordingly, unless procedural lapses have caused the adversary a prejudice which cannot be compensated with costs or there is clear manifestation of an intention to overreach, the same should not be accorded fatal consequences.

6. A court cannot consider an issue to be raised otherwise than by the pleadings.

7. When the defence raises a substantial and bona fide arguabale point, it cannot be struck out under order VI rule 13 (1) (b) (c) and (e) of the Civil Procedure Rules.

Verifying affidavit struck out, plaintiff granted leave to file a fresh affidavit.

Cases

1. Noormohamed Janmohamed v Karsamli Virji Madhani (1953) 20 EACA 8

2. Standard Goods Corporation Ltd v Harakhchanda Nathu and Co (1950) EACA 99

3. Kibunja, Stephen v Forest Road Flats High Court Civil Case No 371 of 2000

4. Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] 1 EA 127

5. Jovenna East Africa Ltd v Silvester Onyango Etal High Court Civil Case No 1086 of 2002

6. Registrar of Co-operative Societies v Pearl Dry Cleaners Ltd HCCC No 1440 of 2000

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13 (1) (b) (c) and (d); order VII rule 1 (2); order XVIII rule 7; order XVIII rule 3; order VI rule 16

2. Civil Procedure Act (cap 21) section 3A

Advocates

Mr Magan for Plaintiffs/Applicants.

Mr Wandabwa for Defendant/Respondent.

Civil Practice & Procedure - Striking out - application for - striking out grounds of opposition - where grounds of opposition are filed and served out of time - whether the court should disregard such pleadings - order 50 rule 16 and section 3A of the Civil Procedure Code

Civil Procedure & Practice - application - stay of execution - appeal - principles for grant of stay - decree - when is execution complete - evidence - onus on party alleging - application dismissed.