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Mbaraka Issa Kombe v. Independent Electoral and Bounderies Commission (IEBC), Kombe Hilary & Teddy Ngumbao Mwambire

(2018) JELR 99182 (CA)

Court of Appeal  •  Election Petition Appeal 3 of 2017  •  10 May 2018  •  Kenya

Coram
Alnashir Ramazanali Magan Visram, Martha Karambu Koome, Wanjiru Karanja

Judgement

JUDGMENT OF THE COURT

1. Striking out pleadings renders the said pleadings non-existent which in turn has the effect of depriving a party of what he/she had anticipated, that is, adjudication of his/her claim or defence by a court of law. Because of the draconian nature of this power it is sparingly invoked by a court as a last resort. This was not always the case in our courts as appreciated by Ouko, J.A in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission and 6 others [2013] eKLR (Nicholas Salat case). He observed that prior to 2010, more specifically, before the promulgation of the current Constitution and enactment of the overriding objective principle in a number of statutes, striking out of pleadings for reasons that were purely technical was the rule rather than the exception.

2. Our brother went on to demonstrate this shift that a court ought to aim at sustaining a suit rather than terminating it summarily. He expressed himself as follows:-

“Devi…

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