This Ruling is in respect of a preliminary objection raised by Mr. Karugire, learned counsel for the Defendant/Applicant on the 11/6/04 when this application was called for hearing before me.
Learned counsel objected to the affidavit in reply filed by the Plaintiff/Respondent’s counsel in response to the application on the grounds that the Respondent does not have a right to file an affidavit in reply in an application by the Defendant/Applicant for leave to appear and defend a summary suit, without leave of Court. That the Plaintiff/Respondent should rely on the affidavit in verification of the claim filed together with the plaint in a Summary Procedure, unless he or she obtains leave of the Court to file an affidavit in reply. The affidavit in reply of the Plaintiff/Respondent in this case should therefore be struck out on those grounds. Counsel relied on the case of Abdul Aziz Suleman —Vs- South British Insurance Co. Ltd [1965] E.A. 66, which was decided under Order 35 of the Kenya CPR and which Mr. Karugire said, is exactly the same with our Order 033, as persuasive authority for his proposition.
Mr. Babigumira, learned counsel for the Plaintiff/Respondent strongly opposed the preliminary objection, in a brief reply. He submitted that Order 33 r 3 of our rules provides that if a Defendant who has been served with summons under Order 33 wishes to defend a summary suit, he or she has to apply for leave under order 33 rule 4. The application shall be supported by an affidavit. Order 33 does not provide for the mode of application. Order 48 rule 1 of the CPR takes care of such situations. It provides that:
“048. 1. All applications to the Court, somewhere otherwise not expressly provided for under these Rules, shall be by motion and shall be heard in open Court.”
The application in the instant case was therefore by Notice of Motion. Order 48 rule 2 is mandatory; all parties affected by the notice of motion must be served. The purpose of service is that the Plaintiff/Respondent should reply if he/she wishes, subject to the proviso. It is now settled that a Notice of Motion is a suit. Section 2 of the CPA defines a suit to mean any proceedings howsoever commenced. In every suit, whether ordinary or by application, the Defendant has a right to file a defence. A Plaintiff/Respondent in a summary suit who has been served with an application for leave to appear and defend is entitled to file a reply, and the Respondent fl the instant case had such a right.
In Mr. Babigumira’s view, the case relied on by Mr. Karugire, in particular holding No. 1 talks about further affidavits being filed without leave of Court. That ruling refers to an application for a summary Judgment. There is also no law which stops the Plaintiff from filing a supplementary affidavit to cure a defect in the affidavit in support of the claim. It does not matter whether the affidavit is filed before or after the application for leave to defend. Mr. Babigumira relied on the case of British East Africa —Vs- Shah Gondji Ledha Civil Case No. 170/39 in support of his arguments.
I have carefully considered the preliminary point raised and the authorities cited by both learned counsel.
I must say I respectfully disagree with the views of Mr. Karugire that the Plaintiff/Respondent requires leave of Court in order to file an affidavit in reply in an application for leave to defend a summary suit. First of all, it is not true as he argued that Order 35 of the Civil Procedure (Revised) Rules 1948 of Kenya is the same as our Order 33. I was unable to lay my hands on the said Rules but it can be deduced from the case of Abdul Aziz Suleiman (supra) cited by Mr. Karugire. In that case, the Plaintiff sued the Defendant under an insurance policy and then applied under 0.35 r 2 and 3 (1) for summary Judgment. The Defendant filed an affidavit in reply which turned out to be defective, then later on filed a second affidavit without leave of Court. The Plaintiff also filed a second affidavit without leave of the Court. The Court held that Order 35 envisages not more than one affidavit by the Plaintiff in support of his application and also one by the Defendant. If any further affidavits are necessary, the leave of the Court must be obtained to file them.

From the facts of that case, it is clear that the Court was dealing with an application for “a summary Judgment”, and not an application for leave to appear and defend which is provided for under our 0.33 CPR. Clearly, the two Rules are different since our Order 33 does not provide for applications for summary Judgment. Applications for summary Judgment are also provided under Order 14 of the English Rules. Under that rule, the Plaintiff first files the suit, and then applies for summary Judgment after serving summons on the Defendant, and after the Defendant has entered appearance and even filed a defence, in some instances. The procedure is therefore different from the procedure under our Order 33. As Mr. Babigumira outlined clearly, Order 33 of our Rules allows a Plaintiff to institute classified suits by presenting a plaint in the prescribed form endorsed “Summary Procedure Order 33’ accompanied by an affidavit verifying the cause of action and stating that in his belief, there is no defence to the suit. Upon filing the suit, the Court serves the summons on the Defendant and the Defendant does not appear and defend the suit directly like in ordinary suits. The Defendant must first apply for leave to appear and defend the suit from Court by an application supported by an affidavit stating the nature of defence. This application and the affidavit are served on the Plaintiff (See Order 33 r 2, 3 and 4). The Practice and indeed the law is, applications for leave to appear and defend are brought by Notice of Motion under 048 r 1, since Order 33 does not prescribe the procedure.
Naturally, a party who has been served with a Notice of Motion just like any other suit, has a right of reply, which in my view, should not depart from the affidavit in verification. I am therefore inclined to accept Mr. Babigumira’s submission that an affidavit in reply is permissible in an application for leave to appear and defend a summary suit and has been the practice in our Courts. No leave of the Court is required as it is the case with applications for summary Judgment under other Jurisdiction.
Regarding the supplementary affidavit filed by Mr. Babigumira on the 7/4/2004 to supplement the affidavit in support of the summary suit, I must say, I found it odd, and I think that such affidavit in question has no place under Order 33 of the CPR. Certainly Order 33 rule 2 does not provide for this. This is because, the Defendant/Applicant in deciding whether to apply for leave to appear and defend or not, relies on the affidavit verifying the plaint. It would therefore be prejudicial to the Defendant/Applicant who has raised a good defence to the suit to be ambushed by another supplementary affidavit calculated to demolish his defence. I think this would defeat the purpose of proceedings under 033. In my view, once a Plaintiff has filed a suit under 0.33 supported by an affidavit, and after the summons have been served on the Defendant and the Defendant has applied for leave to appear and defend, the Plaintiff has no right to file a supplementary affidavit to the main suit. The Plaintiff can only file an affidavit in reply to the points raised by the Defendant’s affidavit in the application for leave to appear and defend the suit. The case of British East India Corporation (1939) Ltd cited by Mr. Babigumira does not do assist him. That case also dealt with an application for summary Judgment and not leave to appear and defend. In any case, even in that case, the Plaintiff’s affidavit in question was a further affidavit in response to the points raised by the Defendant in his affidavit. Perhaps of assistance to this ruling is the observation by Thacker J on page 92 where his Lordship stated that:
“The Order relevant to the English Order 14 is the Kenya Order 33.”
For the reasons given, I overrule the preliminary in respect of the affidavit in reply and up hold it in respect of the supplementary affidavit.