Abdurahim and Others v Khimji (C.C. 112/1929 (Msa.).) [1929] EACA 58 (1 January 1929)

### ORIGINAL CIVIL.

#### Before STEPHENS. J.

## HAJI ABDURAHIM & OTHERS, trading as HAJI ESMAIL MITHOO & SONS

### ABDULLA KHIMJI.

$\mathbf{2}$

#### C. C. $112/1929$ (Msa.).

# The Civil Procedure Rules, 1927, Order 6-Pleadings.

Held: That the making of copies of promissory notes for attaching to the plaint are under the Rules in force wholly unnecessary, and that the costs on these items must be disallowed.

RULING (dated 6-3-30).—This was an application by Mr. Ross on behalf of the defendant to disallow items 5, 7, 8, 10, 11, 12, 13, 15, 16, 17, 19, 20, 21, 23 and 24 from the plaintiffs' bill of costs taxed and allowed by the Registrar on taxation. He referred to Order VI, R. 1, and R. 11 of the Civil Procedure Ordinance.

Rule 1 is identical with Order XIX, R. 4, of the Supreme Court of England Rules, except that the latter contains a further provision about signature of counsel which is omitted from the Kenya Civil Procedure Ordinance. And Rule 11 of Order VI of the Kenya Civil Procedure Ordinance is identical with Order XIX, R. 21, of the English Supreme Court Rules.

Every pleading must contain only a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved. All facts which tend. to prove the fact in issue will be relevant at the trial, but they are not "material facts" for pleading purposes. LORD CHIEF JUSTICE DENMAN in Williams v. Wilcox (8 Ad. & E., p. 331) says:-" It is an elementary rule in pleading that when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegation."

Order VI, R. 11, enacted that "wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material."

It seems to me that the items referred to, namely making copies of the promissory notes for attaching to the plaint, were under the rules in force wholly unnecessary; all that the pleadings need have contained were the facts that such and such a. sum was due on such and such a date under a bill of exchange or promissory note, with the date when made.

I therefore grant the application of the defendant and disallow the items referred to therein with costs.