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MOUNT ELGON HARDWARE
V.
UNITED MILLERS LTD

(1996) JELR 97625 (CA)

Court of Appeal 21 Mar 1996 Kenya
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- The appellant’s claim was founded on alleged negligence but failed to plead any particulars of negligence in the plaint, contravening Order VI Rule 8(1) of the Civil Procedure Rules. - Citing MUKASA v. SINGH AND OTHERS [1969] E. A. 442, t

Case Details

Suit Number:Civil Appeal 19 of 1996
Judges:Riaga Samuel Cornelius Omolo, Akilano Molade Akiwumi, Richard Otieno Kwach
Location:Kisumu
Other Citations:Mount Elgon Hardware v. United Millers Ltd [1996] eKLR

JUDGEMENT OF THE COURT

There is no merit at all in this appeal and it must be dismissed. The appellant’s claim was based on alleged negligence but as the learned trial judge correctly observed the appellant did not plead any particulars of negligence in its plaint. That was expressly contrary to the provisions of Order VI Rule 8 (1) of the Civil Procedure Rules. It is elementary learning that in claims involving allegations of negligence. The particulars of such negligence must be specifically pleaded – see MUKASA v. SINGH AND OTHERS [1969] E. A. 442. It is still the duty of a party alleging negligence to prove the same and a party cannot be allowed to prove that which he has not pleaded.

Furthermore the respondent denied any form of negligence on its part and in turn, alleged negligence against the appellant. The respondent properly pleaded the particulars of such negligence. The appellant wholly failed to traverse by any further pleadings the particulars of negligence alleged in the r…

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