PETER M. ECHARIA vs. PRISCILLA N. ECHARIA[1998]eKLR

The case involves a dispute over the curability of a defective Notice of Motion under Rule 42(1) of the Court of Appeal Rules. The Respondent sought to strike out the appeal as incompetent, while the Appellant argued the motion failed to state grounds in its body, requiring amendment. The Court ruled the defect was curable, granting leave to amend the notice of motion to comply with Rule 42(1).

The court addressed whether a Notice of Motion that fails to explicitly state the grounds of the application in its body is incurably defective under Rule 42(1) of the Court of Appeal Rules. The ruling clarified that while the omission constitutes a defect, it is curable by amendment, allowing the respondent to correct the motion to comply with procedural requirements.

The Court of Appeal ruled that the Notice of Motion in the case was defective under Rule 42(1) of the Court of Appeal Rules for failing to state the grounds of the application. However, the defect was deemed curable, and the court granted the Respondent leave to amend the Notice of Motion to comply with the rule's requirements.

The court grants leave to the Respondent to amend the notice of motion to comply with Rule 42(1) of the Court's Rules.

The court held that a Notice of Motion must state the grounds of the application as required by Rule 42(1) of the Court of Appeal Rules. While a failure to do so constitutes a defect, the court ruled such defects are curable by amendment, allowing the respondent to correct the application.

Court of Appeal Rules