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PETER M. ECHARIA v. PRISCILLA N. ECHARIA

(1998) JELR 95032 (CA)

Court of Appeal  •  civ app 247 of 97  •  19 May 1998  •  Kenya

Coram
Johnson Evan Gicheru, Riaga Samuel Cornelius Omolo, Samuel Elikana Ondari Bosire, Zakayo Richard Chesoni

Judgement

RULING OF THE COURT

The Respondent has applied that this appeal be struck out as incompetent. Dr. Kamau for the Appellant objected to the notice of motion as being incurably defective for failing to comply with Rule 42(1) of the Rules of this Court. That rule states that “all applications to the Court shall be by motion, which shall state the grounds of the application”. He submitted that this requirement being mandatory in its language it is not enough for the grounds to be given only in the supporting affidavit. The respondent should know the case he/she has to answer. Ms. Karua for the applicant/respondent submitted that the ground is stated in the body of the application” as incompetent”, and if that is not sufficient she asked to be granted leave to amend the application.

We agree that the Notice of Motion is defective but the defect is curable, and, for that reason, and Ms. Karua having applied for leave to amend the notice of motion, we grant leave for the Respondent to amend the…

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