[2017] KEELC 3718 (KLR)
The court held that the preliminary objection did not raise a pure point of law because it required examination of disputed facts regarding the alleged settlement. Citing the Mukisa Biscuits case, the court emphasized that a preliminary objection is only appropriate where no facts are in dispute. Since the...
Source-derived case information.
- Citation
- [2017] KEELC 3718 (KLR)
- Parties
- Claimant: Alex Wanjala Kanule; Respondent: Robinson Investment Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 231 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Preliminary Objection, Compromise and Settlement, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Wanjala Kanule
Claimant
Robinson Investment Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised a pure point of law or required examination of disputed facts.
- 2 Whether the suit was compromised and settled, rendering it an abuse of court process.
Ratio Decidendi
The court held that the preliminary objection did not raise a pure point of law because it required examination of disputed facts regarding the alleged settlement. Citing the Mukisa Biscuits case, the court emphasized that a preliminary objection is only appropriate where no facts are in dispute. Since the Respondent's objection was based on factual issues that needed to be ascertained, it could not be determined as a preliminary objection. The court therefore dismissed the preliminary objection, finding it without merit, and made no order as to costs.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 231 OF 2016
ALEX WANJALA KANULE CLAIMANT
v
ROBINSON INVESTMENT LIMITED RESPONDENT
RULING
1. The Respondent filed a Notice of Preliminary Objection on 5 October 2016 asserting that
1. This matter is concluded having been fully and finally settled between the Respondent’s and the Plaintiff’s Advocates M/s Keboga & Co. Advocates at Kshs 15,000 which was duly paid to the said Advocates on 30th August, 2016 as per attached two letters dated 20/6/2016 and 28/6/2016.
2. This matter between the two parties having been so compromised and settled as above, this suit is thus a gross abuse of the Court process and ought to be struck out with costs to the Respondent.
2. The Claimant filed a replying affidavit to the preliminary objection on 16 January 2017 (the Claimant had been given up to 9 December 2016 to respond to the preliminary objection).
3. In so far as the preliminary objection requires the Court to examine disputed facts, the Court is of the view that it does not present a real preliminary objection as was stated long ago in the case of Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd (1969) EA 696, wherein Sir Charles Newbold, P stated
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
4. The Court therefore finds no merit in the preliminary objection and dismisses it with no order as to costs.
5. Because the Respondent has raised a plea of compromise in the Memorandum of Response, it may move Court appropriately to determine that question before a hearing on the merits in order to save the Court’s time.
Delivered, dated and signed in Nakuru on this 18th day of January 2017.
Radido Stephen
Judge
Appearances
For Claimant Mr. Opar instructed by M. Korongo & Co. Advocates
For Respondent Mr. Awuonda instructed by Githiru & Co. Advocates
Court Assistant Daisy