Wangira Moses and 9 Others v Wabwire John Masinde and 4 Others (Miscellaneous Application 8 of 2024)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The High Court dismissed the application for leave to appeal as incompetent on two grounds. First, the applicants had an automatic right of appeal under Order 6 Rule 30(2) of the Civil Procedure Rules and thus required no leave. Second, the supporting affidavit was fatally defective because it was deposed to by counsel who was in personal conduct of the matter, contrary to Regulation 9 of the Advocates (Professional Conduct) Regulations.
Outcome
Application dismissed as incompetent; applicants retain automatic right of appeal under Order 6 Rule 30(2) CPR
Facts
The applicants, beneficiaries to an estate, filed a joint written statement of defence in Civil Suit No. 042 of 2021. The respondents, administrators of two other estates, raised a preliminary objection that the defence contained general denials and was evasive, offending Order 6 Rules 8, 10, and 30 of the Civil Procedure Rules. The court sustained the preliminary objection and struck out the applicants' defence under Order 6 Rule 30. The applicants then brought this application seeking leave to appeal and stay of proceedings. The respondents raised two preliminary objections: first, that the applicants required no leave to appeal as Order 6 Rule 30(2) grants an automatic right of appeal; and second, that the supporting affidavit was fatally defective because it was deposed to by counsel in personal conduct of the application, contrary to Regulation 9 of the Advocates (Professional Conduct) Regulations. The applicants' counsel filed no response to either objection.
Issues
- Whether the applicants required leave to appeal an order striking out their defence under Order 6 Rule 30 of the Civil Procedure Rules.
- Whether the affidavit in support was fatally defective for having been deposed to by counsel in personal conduct of the application.
Orders
- Application dismissed.
- Costs awarded to the respondents.
Rules and key headnotes
Legislation cited (13)
- Civil Procedure Act Cap.282 s.76
- Civil Procedure Act s.98
- Civil Procedure Act s.2(c)
- Civil Procedure Rules S.I 71-1 Order 6 Rule 8
- Civil Procedure Rules Order 6 Rule 10
- Civil Procedure Rules Order 6 Rule 30
- Civil Procedure Rules Order 6 Rule 30(1)
- Civil Procedure Rules Order 6 Rule 30(2)
- Civil Procedure Rules Order 44 Rule 1
- Civil Procedure Rules Order 44 Rule 2
- Civil Procedure Rules Order 52 Rule 1
- Civil Procedure Rules Order 52 Rule 2
- Advocates (Professional Conduct) Regulations Regulation 9
Cases cited (4)
- Hwang Sung Ltd v M. and D. Timber Merchants and Transporters Ltd (Supreme Court Civil Appeal No. 2 of 2018)
- Ismail T/a Bombo City Stores vs Alex Kamukamu & Others (1992) 3 KALR 113
- Henry Kaziro Lwandasa v Kyas Global Trading Co. Ltd (Miscellaneous Application No. 865 of 2014)
- The Most Reverend Dr. Steven Samuel Kazimba Mugalu v Mazzi Joyce & 5 Others (Miscellaneous Application No. 36 of 2023)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.