Jamshed Ahmed Butt & another v Moses & 2 others [2013] KECA 305 (KLR)
The bottom line
#Kenya's Court of Appeal restored a property suit that a High Court judge wrongly struck out over technical pleading issues, confirming minor filing defects should not end cases.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex the Power of Attorney to the verifying affidavit justified striking out the plaint
No. The Power of Attorney existed and was not challenged; its non-annexation was not fatal and a formal application would have given the appellants an opportunity to avail it.
Order VII rule 1(2) required only a verifying affidavit, which was furnished. Rule 1(3) makes striking out discretionary and tied to breach of sub-rule (2). The existence of the Power of Attorney was admitted and unchallenged; the judge's finding of fatality was unsupported by law. A formal application would have allowed the document to be produced.
Whether the averment that there were no previous proceedings was breached by the pending H.C.C.C. No. 196 of 2008
No. The breach arises only where the previous or pending suit is between the same parties over the same subject matter; the parties here differed.
Order VII rule 1(e) required averment of no previous proceedings 'between the plaintiff and defendant over the same subject matter'. The prior suit was against the deceased Khurshed Butt, not against Farouk or the 1st and 2nd respondents, and Farouk was neither administrator nor a party to it. The claim against him had also been withdrawn before striking out.
Whether the effect of striking out gave a remedy to a stranger to both suits
The striking out erroneously conferred a benefit on Farouk, who was not a party to either suit and had made no application; he had an available remedy by obtaining a grant and seeking joinder.
Farouk had withdrawn from the current suit (the appellants had discontinued against him), had not obtained letters of administration of his brother's estate, and had not applied to be joined. Striking out the suit against the 1st and 2nd respondents on his objection gave a remedy to a stranger. His proper course was to seek a grant, join both suits, and apply for a stay.
Whether the learned judge exercised his discretion judicially
No. There being no valid grounds for striking out, the discretion was not exercised judicially and the orders were set aside.
The strike-out rested on two erroneous findings: that non-annexation of the Power of Attorney was fatal, and that the pending suit breached the averment against previous proceedings. Neither was supported by the rules. With the premises of the discretion undermined, the resulting orders could not stand and the suit was restored for hearing on the merits.
Legal principles established
#- The power to strike out a plaint for breach of the verifying-affidavit requirement is discretionary and applies only where the plaint is not accompanied by a verifying affidavit; failure to annex a power of attorney to the verifying affidavit is not a ground for striking out a plaint.
- A plaint is in breach of the 'no other suit pending' averment only where the pending or previous suit is between the same parties over the same subject matter; a suit against different parties, even on related subject matter, is not such a breach.
Court orders
#- 1.The appeal is allowed
- 2.The order striking out the suit and the application dated 29th April 2009 is set aside
- 3.The suit and the application are restored for hearing on the merits
- 4.The costs of the appeal to be in the suit
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 122 of 2009
- Jurisdiction invoked
- Appellate jurisdiction under the Constitution and the Civil Procedure Act over appeals from the High Court (Civil Appeal from Ruling and Decree of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Jamshed Ahmed Butt & another v Moses & 2 others [2013] KECA 305 (KLR)", Case Analysis (2013). Civil Appeal No. 202 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/305/eng@2013-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.