Yaya Towers Limited v Trade Bank Limited (in

liquidation)

Court of Appeal, at Nairobi October 27, 2000

Tunoi, Lakha & Keiwua, JJ A

Civil Appeal No 35 of 2000   

(Appeal from the ruling and order of the High Court of Kenya at Milimani Commercial Courts (Mr Justice Mbaluto) dated 4th February, 2000 in HCCC No 235 of 1998)

Civil Practice and Procedure – striking out pleadings – grounds for striking out – failure by plaintiff to supply particulars – whether this would be a proper ground for striking out.

The suit as pleaded by the plaintiff was that at all material times, the defendant operated an account with the plaintiff. In or about July, 1992, at the request of the defendant, the plaintiff extended an overdraft facility to the defendant in the said account. At the time the plaintiff was put under management and later liquidation the defendant was indebted to the plaintiff by way of an overdraft account in the sum of Kshs 195,684,223.30 together with interest. In the alternative, the plaintiff claimed the said sum being the amount due for monies lent by the plaintiff to the defendant and for monies paid by the plaintiff for and on behalf of and to the use of the defendant at the request of the defendant. In iÑs defence, the defendant denied virtually every allegation in the plaint. The defence was followed promptly with a request for particulars. The particulars as supplied by the plaintiff did not show that the account opening forms related to the defendant nor did they show that the account was opened and operated by any of the directors of the defendant. The defendant, therefore, applied for the plaintiff’s suit to be struck out under order VI rule 13(1)(b) (c) and (d) of the Civil Procedure Rules. The High Court disallowed the application hence this appeal.

Held:

1. Particulars form part of the pleadings and they bind the party furnishing them. No case inconsistent with the pleadings would be allowed to be set up at the trial.

2. On an application to strike out a plaint under order VI rule 13(1) (a) of the Civil Procedure Rules on the ground that it discloses no reasonable cause of action, the truth of the allegations contained i~ the plaint is assumed and evidence to the contrary is inadmissible.

3. Where the application to strike out a plaint is made under order VI rule 13 (1) (b), or (c) or (d) of the Civil Procedure Rules or the inherent jurisdiction of the court on the ground that the claim is ‘frivolous’ or is an abuse of the process of the court, evidence is admissible to show that this is the case.

4. The power to strike out pleadings is one which should be exercised only in plain and obvious cases. The summary remedy of striking out is applicable whenever it can be shown that the action is one which cannot succeed or is in some way an abuse of the process of the court or that it is unarguable. It has nothing to do with a case being complex or difficult or that it requires a minute or protracted examination of the documents and the facts of the case.

5. Where a plaintiff brings an action where the cause of action is based on a request made by the defendant, he must allege and prove, inter alia, both the act done and the request made for the doing of such an act.

Appeal allowed.

Cases

1. Lawrence v Lord Norreys (1890) 15 App Cas 210; [1886] All ER Rep 858

2. Wenlock v Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871

3. Hubbuck & Sons Ltd v Wilkinson Haywood & Clark Ltd [1899] 1 QB 86; [1895-99] All E R Rep 244; (1898) 79 LT 429

4. Dyson v A-G [1911] 1 KB 410; [1912] 1 Ch 158

5. Nagle v Feilden [1966] 2 QB 633

6. Drummond - Jackson v British Medical Association [1970] 1 All ER 1094; [1970] WLR 688

7. Murri, Paolo v Gian Battista Murri & another Civil Appeal No 59 of 1997

8. Melas v New Carlton Hotel Ltd [1977] KLR 47

9. Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1969] 3 All ER 897; [1970] Ch 506

10. DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1

Statutes

Civil Procedure Rules (cap 21) Sub Leg) order VI rules 13(1) (a)(b)(c)(d),

(2)

Methang’athia & 4 others v District Land

Adjudication & Settlement Officer Meru North

(Nyambene) District & 3 others

High Court, at Nairobi October 26, 2000

Amin & Khamoni JJ

Miscellaneous Civil Application No 230 of 1993

Judicial Review – orders – whether orders granted in judicial review proceedings are subject to review.

Civil Practice and Procedure - joinder of parties - parties to a suit – whether joinder may be allowed after conclusion of suit – distinction between joinder and substitution of parties.

Jurisdiction – inherent jurisdiction of the High Court – under section 3A of the Civil Procedure Act – whether the inherent jurisdiction may be invoked where there are more specific provisions of law dealing with the issue in question.

There were two Notices of Motion before Court. The first Notice of Motion dated 16th February 1999 sought to join the applicants as parties to HC Misc Application No 230 of 1993 and was brought under section 3A of the Civil Procedure Act and order L rules (1) and (12) of the Civil Procedure Rules. The second Notice of Motion, dated 21st March 2000 and was brought under order XLIV rule 1 and order L rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The main prayers in the second motion were a stay of the orders already made together with a review of the same on the ground that the respondents had concealed facts before the honorable Court.

Held:

1. The way parties are designated in an ordinary Notice of Motion or any other application including Chamber Summons is different from the way parties are designated in a Notice of Motion or Chamber Summons asking for prerogative orders under order LIII of the Civil Procedure Rules.

2. In the adjudication process under the Land Adjudication Act, the Act is silent about the application of the Civil Procedure Act and Rules.

3. In deciding appeals under the Land Adjudication Act, the Minister is not bound to follow the procedure laid down for hearing civil suits and is justified, whilst bearing previous decisions (including decisions of land committee, arbitration board, land adjudication officer as well as court decisions) in mind, in giving no effect to them. The principle of res judicata does not apply to him.

4. Section 3A of the Civil Procedure Act confers inherent powers of the Court, and properly should not be used where there are specific provisions of the law dealing with the issue in question.

5. Order L rules (1) and (12) provide for the manner in which applications should be made, that is, by motion except when it is otherwise expressly provided for under the Civil Procedure Rules; and no application should be taken and non should be refused simply because the relevant order, rule or statutory provisions under or by virtue of which the application is made has not been stated.

6. When parties to a suit intend to replace a deceased litigant, the proper procedure is by applying to make an application for substitution of the deceased with the administrator or administrators of his/her estate who must be named and not an application for joinder of parties.

7. Joinder of parties may only be allowed before the trial or at the trial of the suit to be joined. It is substitution of a party that can be done after the trial has ended.

8. Proceedings for prerogative orders are not an action; but are proceedings of a special jurisdiction and therefore when the High Court is seized of these proceedings, it is neither exercising its civil nor its criminal jurisdiction. The provisions of the Civil Procedure Act and Civil Procedure Rules relating to civil proceedings as well as the provisions of the Criminal Procedure Act relating to criminal proceedings do not apply, except that rules under order LIII of the Civil Procedure Rules relating to prerogative orders do apply.

9. The High Court has no jurisdiction to stay, arrest, recall, review, set aside or quash a prerogative order which has already been made or granted. Such an order is final and subject only to the right of appeal conferred by section 8(5) of the Law Reform Act (Cap 26).

10. If in law the High Court has no jurisdiction to review a prerogative order which has already been made or granted, a mere order of that Court giving the parties the liberty to apply cannot confer upon that Court the jurisdiction to review which the Court does not have.

11. To gain the locus standi to apply for review under order XLIV of the Civil Procedure Rules, the applicant must have been involved or have taken part in the proceedings from which the decree or order to be reviewed was passed or made.

12.Whether land adjudication work is being done under the Land Consolidation Act or under the Land Adjudication Act, and the land consolidation and adjudication machinery to settle the dispute are not yet closed to applicants, this would be the alternative open to the applicants instead of them filing another suit between land demarcation and the stage of finality of land adjudication and consolidation.

Application dismissed.

Cases

1. Timotheo Makenge v Manunga Ngochi [1979] KLR 53

2. Mbae, Kuria v Land Adjudication Officer, Chuka & another Miscellaneous Civil Application No 257 of 1983

3. Commissioner of Lands v Kunste Hotel Limited Civil Appeal No 234 of 1995

Statutes

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

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 13; order XXX rules 1, 4; order XLIV rule 1; order XLVI; order L rules 1, 12; order LIII

3. Land Consolidation Act (cap 283) sections 2(1); 7; 11; 15; 16; 17; 18; 19; 20; 21; 22; 23; 24; 25; 26; 27

4. Land Adjudication Act (cap 284) sections 3(1)(c); 12; 14; 19; 20; 26; 29

5. Law Reform Act (cap 26) section 8(1)(2)(3)(5)

6. Government Lands Act (cap 280) section 136 (1)(2)

7. Government Proceedings Act (cap 40) section 13A

8. Interpretation and General Provisions Act (cap 2) section 3

9. Administration of Justice (Miscellaneous Provisions) Act, 1938 [UK] section 7

10. Criminal Procedure Code (cap 75)

Advocates

Mr Wagara and Miss Kamau for the Applicants/Interested Parties

Miss Kimani for the 1st and 2nd Respondents

Mrs Wambugu for the 3rd Respondent

M’Inoti for the 4th Respondent