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VIRGINIA WAMBUI CHEGE v. NYAMU WAITATHU

(2000) JELR 94590 (CA)

Court of Appeal  •  civ app 111 of 99  •  7 Jun 2000  •  Kenya

Coram
Samuel Elikana Ondari Bosire, Abdulrasul Ahmed Lakha, Richard Otieno Kwach

Judgement

JUDGMENT OF THE COURT


The suit giving rise to this appeal was in trespass and ought to have been instituted by way of a regular suit. It clearly does not fall within the parview of Order 36 rule 3 under which it was purportedly commenced. This is unsustainable and clearly incompetent. Accordingly, the suit is incompetent.

The appeal, therefore, succeeds.

The appeal, therefore, is allowed and the decree of the superior court is set aside and substituted by an order striking out the originating summons.

There will be no order as to costs.

Dated and delivered at Nairobi this 7th day of June, 2000.

R.O. KWACH .................. JUDGE OF APPEAL A.A. LAKHA .................. JUDGE OF APPEAL S.E.O. BOSIRE .................. JUDGE OF APPEAL


I certify that this is a true copy of the original.

DEPUTY REGISTRAR

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