TIMOTHY ODWORI MAKHOKA vs 1.RAMA LUGU 2.SULEIMAN MONI [2004] KEHC 2005 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT MOMBASACIVIL SUIT NO. 220 OF 2001 TIMOTHY ODWORI MAKHOKA…………………….……PLAINTIFF =V E R S U S= 1. RAMA LUGU……………………………………….1ST DEFENDANT

2. SULEIMAN MONI CHARO……………………..2ND DEFENDANT

R U L I N G

The Applicant filed his Plaint on June 2000. On 5/5/2000 the procedure rules had been altered and it became mandatory to always plead in a Plaint the matters now sought to be added. I am satisfied with the explanation given for noncompliance with the new rule. There is a difference between omitting to file a verifying affidavit and omitting to include material under Rule 7A(2) Civil Procedure Code.

Furthermore, there is now a divided opinion in the High Court as to whether non-compliance with the new procedure (7A) makes a Plaint null and invalid.

For my part I am of the view that rules of procedure should not be used to the prejudice of a litigant where a step can be taken to correct the error.

I have considered the submissions of both counsel and the authorities submitted. I am inclined to allow the application which I hereby do. I grant the orders sought with costs to the Defendant.

Dated at Mombasa this 12th day of February, 2004.

JOYCE KHAMINWA J U D G E

I also order the Amended Plaint be filed within 10 days from to-day. Defence may be amended within 15 days of service of Amended Plaint.

JOYCE KHAMINWA J U D G E