Automated Summary
Key Facts
The court ruled that Defendants 2-5, represented by the same legal firm as the first Defendant, could not be subjected to default orders. The applicant's replying affidavit was partially struck out for containing scandalous content but otherwise complied with procedural requirements. The case proceeded to hearing after addressing these procedural issues.
Issues
- The court addressed whether default orders could be entered against the second, third, fourth, and fifth defendants who did not respond to the application. It found they were represented by the same firm (Sichangi & Co. Advocates) as the first defendant, and thus no orders could be entered against them in default without hearing their counsel.
- The court examined the compliance of the replying affidavit with Order 18 of the Civil Procedure Code, determining that while the source of information was disclosed (satisfying Rule 3), paragraph 10 contained scandalous content directed at the defendant's counsel and was struck out under Rule 6. The remaining paragraphs were deemed compliant.
Holdings
- The court determined that the Defendants other than the first Defendant are represented in court by their Advocate and no orders can be entered against them in default. The court emphasized that all Defendants are represented by the same firm of Advocates (Sichangi & Co.), and thus, orders cannot be issued without their Counsel being heard.
- The court found that the Replying Affidavit complies with Order 18 of the Civil Procedure Code as the source of information is disclosed, but struck out paragraph 10 of the affidavit for containing scandalous matters related to the Defendant's Counsel. The remainder of the affidavit remains on record.
Remedies
- Paragraph 10 of the replying affidavit was found to contain scandalous matters and was struck out from the record, while the rest of the paragraphs remain on record.
- The court allowed the application to proceed to the hearing stage.
- The court ordered that no default orders could be entered against the second, third, fourth, and fifth defendants since they are represented by counsel.
Legal Principles
The court determined that the replying affidavit partially complied with Order 18 of the Civil Procedure Code. Rule 3 requires affidavits to be confined to facts the deponent can prove, while Rule 6 permits courts to strike out scandalous, irrelevant, or oppressive content. Paragraph 10 of the affidavit was struck out for containing scandalous matters, but the source of information in other paragraphs was disclosed as required by Rule 3.
Cited Statute
Civil Procedure Code
Judge Name
Joyce N. Khaminwa
Passage Text
- Regarding the Replying Affidavit, the source of information is disclosed and therefore Order 18 Civil Procedure Code is complied with. However, paragraph 10 of the said affidavit contains scandalous matters and the said is struck out. The rest of paragraphs shall remain on record.
- In the circumstances, the Court finds and orders that the Defendants other than the first Defendant are represented in court by their Advocate and no orders can be entered against them in default.