MARY KALOLIA MUTISYA v JOEL NGUI MWEU [2005] KEHC 308 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Civil Case 41 of 2003

MARY KALOLIA MUTISYA ………….…….. PLAINTIFF

VERSUS

JOEL NGUI MWEU ……………………….. DEFENDANT

R U L I N G

Mr. Nduva Kitonga counsel for the Plaintiff/Respondent filed a Notice of Preliminary Objection dated 14. 4.2005.  Objecting to the chamber summons dated 14. 10. 2004 in which the Defendant/Applicant was seeking orders under Order 6 Rule 13 (1) (a) and (d) Civil Procedure Rules, Order 50 Rule 7 Civil Procedure Rule and Section 3A Civil Procedure Act to have the Plaintiff/Respondents suit struck out for not disclosing a reasonable cause of action and for being an abuse of the court process.  The Plaintiff/Applicant also sought costs.

Mr. Kitonga only argued the 1st ground in his preliminary objection which is that the application as filed is incompetent and fatally defective and offends provisions of Order 6 Rule 13 Rule 1(a) because under Rule 13 (a) no evidence is required in support of the application but the applicant has filed an affidavit to which are annextures. That the applicant should only have filed grounds to support his application.

The objection was opposed by Mr. Mbindyo who submitted that the application is also brought under Order 6 Rule 13 (1) (d) which talks of the suit being an abuse of court process, and that under that sub rule there is no bar to one adducing evidence.

Order 6 Rule 13 (1) provides as follows:

At any stage of the proceedings, the court may order to be struck out or amended any pleadings on the ground that

(a) It discloses no reasonable cause of action or defence or

(d)  It is otherwise an abuse of the court process and may order the suit to be stayed or dismissed or judgement to be entered accordingly as the case maybe.”

The above sub rule are the ones under which the applicant seeks to strike out the plaintiff’s suit.  Rule 13 (2) supplements subrule 1 (a) and it provides as follows:

(3)  “No evidence shall be admissible on application under subrule

1 (a) but the application shall state concisely the grounds on which it is made.”

What rule 13 (1)(a) and (2) read together mean  is that the party who seeks to have the suit stuck out for  disclosing no reasonable cause of action shall not file any affidavit or file any annextures as the applicant has done.  The applicant only needs to rely on the application and grounds.  Reasonable cause of action means that an action has some chance of success when only the allegations in the paint or pleadings are considered.  The court need not look at any other evidence like affidavits or annextures.

For an application under Order 13 Rule 1 (d) for allegation that the suit is an abuse of court process, one needs to adduce evidence by way of affidavits or annextures as the applicant has done.  The question is whether the two prayers under Rule 13 (1) (a) and 13 (1) (b) can be sought together as the applicant has done.  In my considered view the applicant cannot seek the two prayers together as has been  she has done because evidence has been adduced to support his first prayer under sub rule 1(a).  The way the applicant has framed the prayers is such that they can not be separated.  If the applicant had sought them as two different prayers then the court would consider proceeding with one and striking out the other.  I find that the Chamber Summons is indeed incompetent as the orders sought can not issue.  The chamber summons dated 14. 10. 2004 is therefore struck out with costs to the plaintiff/respondents.

Dated at Machakos this 4th day of May 2005.

Read and delivered in the presence of

R. V. WENDOH

JUDGE