[2007] KEHC 3343 (KLR)
The court held that since a preliminary objection can be raised at any time, and if the application is indeed incompetent, it is preferable for such an objection to be raised at the earliest opportunity. The respondents' counsel was therefore entitled to raise the preliminary objection at the leave stage, and the...
Source-derived case information.
- Citation
- [2007] KEHC 3343 (KLR)
- Parties
- Applicant: Beatrice Cherotich Koskei; Applicant: Geoffrey Kipkurui Ngetich; Respondent: Olenguruone Land Disputes Tribunal; Respondent: Principal Magistrate, Molo Law Courts; Respondent: District Land Registrar Nakuru; Interested Party: Kipkemoi A. Chepkosiom; Interested Party: Rael Chepkosiom
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 861 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection at Leave Stage
- Outcome
- Preliminary objection allowed to be raised; applicants permitted to respond or seek adjournment.
- Judges
- BP Kubo
- Legal Topics
- Judicial Review Leave, Preliminary Objection, Tribunal Awards, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Cherotich Koskei
Applicant
Geoffrey Kipkurui Ngetich
Applicant
Olenguruone Land Disputes Tribunal
Respondent
Principal Magistrate, Molo Law Courts
Respondent
District Land Registrar Nakuru
Respondent
Kipkemoi A. Chepkosiom
Interested Party
Rael Chepkosiom
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection at Leave Stage
Legal Issues
- 1 Whether a preliminary objection can be raised at the leave stage of a judicial review application.
- 2 Whether formal notice is required before raising a preliminary objection in such proceedings.
Ratio Decidendi
The court held that since a preliminary objection can be raised at any time, and if the application is indeed incompetent, it is preferable for such an objection to be raised at the earliest opportunity. The respondents' counsel was therefore entitled to raise the preliminary objection at the leave stage, and the applicants were entitled to respond. If the applicants preferred to be served with formal notice, they could seek an adjournment. The court thus allowed the preliminary objection to be raised and for the applicants to respond accordingly.
Court Disposition
Preliminary objection allowed to be raised; applicants permitted to respond or seek adjournment.
Orders
- Respondents' counsel is allowed to raise the preliminary objection to the application as it stands.
- Applicants' counsel may respond to the preliminary objection or seek adjournment if formal notice is preferred.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civi lAppli 861 of 2007
IN THE MATTER OF AN APLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW SEEKING FOR ORDERS OF CERTIORARI AND PROHIBITION BY BEATRICE CHEROTICH KOSKEI AND GEOFFREY KIPKURUI NGETICH
AND
IN THE MATTER OF DECISION BY THE OLENGURUONE LAND DISPUTES TRIBUNAL IN LAND DISPUTES TRIBUNAL CLAIM NO.56
OF 2006
AND
IN THE MATTER OF LAND DISPUTES ACT NO.18 OF 1990
AND
IN THE MATTER OF THE AWARD BY OLENGURUONE LAND DISPUTES TRIBUNAL SENIOR RESIDENT MAGISTRATE COURT AT MOLO IN DISPUTE NO.36 OF 2006
BETWEEN
BEATRICE CHEROTICH KOSKEI
GEOFREY KIPKURUI NGETICH…………………………………APPLICANTS
AND
OLENGURUONELANDDISPUTE TRIBUNAL………… 1ST RESPONDENT
PRINCIPAL MAGISTRATE,MOLO LAW COURTS…...2ND RESPONDENT
DISTRICTLANDREGISTRAR NAKURU…………….….3RD RESPONDENT
AND
KIPKEMOI A. CHEPKOSIOM
RAEL CHEPKOSIOM ……………………..…..…….INTERESTED PARTIES
RULING
An interesting point of law has arisen at the outset. Applicants’ counsel acknowledges having served respondents on 17. 08. 07 with the chamber summons dated 07. 08. 07 supposed to be for hearing today. Respondents’ counsel informs court that respondents instructed his firm on 20. 08. 07; that he noted defects in the application which in his view make the application incompetent such as to make it a nullity. Respondents’ counsel, therefore, wishes to raise a preliminary objection to the application as it stands today.
On the other hand, applicants’ counsel submits that the application ought to be ex-parte at this stage seeking leave to file the substantive application; that the present application for leave ought to proceed unimpeded and that whatever points of law respondents wish to raise should be raised when the present application for leave has been heard, leave granted and the substantive application filed. Additionally, applicants’ counsel submits that respondents’ counsel never notified him of intention to raise a preliminary objection, that he is, therefore, ambushing him and that the court should not allow that.
I note that respondents were served with the present application for leave on 17. 08. 07, i.e. last Friday. Today is Tuesday 21. 08. 07. Respondents’ counsel says he was instructed only yesterday and has had no time to file formal notice of the preliminary objection. But he adds that he did not have to file formal notice of intention to raise a preliminary objection and that a preliminary objection can be raised at any time.
If, as respondents’ counsel contends, the present application is defective and incompetent, any proceedings based on it would be a nullity and a waste of everybody’s time. It is trite law that a preliminary objection can be raised at any time and that if such an objection exists, it is preferable for it to be raised at the earliest possible opportunity. I, therefore, hold that respondents’ counsel is entitled to raise his preliminary objection to the application as it stands, for the applicants to respond 0thereto for the court to make a determination thereon.
Accordingly, I allow respondents’ counsel to raise his preliminary objection for applicants’ counsel to respond thereto but if applicants’ counsel prefers to be served with formal notice thereof first, he is at liberty to seek adjournment of today’s proceedings.
Dated at Nairobi this 21st day of August, 2007.
B.P. KUBO
JUDGE