[2005] KEHC 1843 (KLR)
The court held that a preliminary objection may be raised at any time during the proceedings, provided it qualifies as a point of law that could dispose of the suit or appeal. The court found that neither Order L rule 1 nor Order XLI rule 8B of the Civil Procedure Rules precludes a party from raising a preliminary...
Source-derived case information.
- Citation
- [2005] KEHC 1843 (KLR)
- Parties
- Appellant: Busia Sugar Company Limited; Respondent: Wanga & Company Advocates
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Prior to Hearing of Appeal
- Outcome
- Applicant's objection overruled; respondent's preliminary objection allowed to proceed.
- Legal Topics
- Preliminary Objection, Stay of Execution, Admission of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Busia Sugar Company Limited
Appellant
Wanga & Company Advocates
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Prior to Hearing of Appeal
Legal Issues
- 1 Whether a preliminary objection can be raised before the admission of an appeal under Order XLI rule 8B of the Civil Procedure Rules.
- 2 Whether a preliminary objection is a recognized form of response to a motion or summons under the Civil Procedure Rules.
Ratio Decidendi
The court held that a preliminary objection may be raised at any time during the proceedings, provided it qualifies as a point of law that could dispose of the suit or appeal. The court found that neither Order L rule 1 nor Order XLI rule 8B of the Civil Procedure Rules precludes a party from raising a preliminary objection before the admission of an appeal. The applicant's contention that a preliminary objection is not a recognized form of response to a motion or summons was rejected. The court concluded that the preliminary objection was properly raised and allowed the respondent to proceed with it, overruling the applicant's objection with costs to the respondent.
Court Disposition
Applicant's objection overruled; respondent's preliminary objection allowed to proceed.
Orders
- The preliminary objection is properly raised and the respondent may proceed with it.
- The applicant's objection is overruled with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA. Civil Case 39 of 2004
BUSIA SUGAR COMPANY LIMITED…….…….…….APPELLANT VS WANGA & COMPANY ADVOCATES……………RESPONDENTS
R U L I N G
In a notice dated 18. 2.2005 the Respondent raised a preliminary objection against the Motion dated 1st February, 2005. The Motion was basically seeking for a stay of execution of the orders issued by the Deputy Registrar of this Court on 4. 10. 2004 and 23. 11. 2004.
The nature of the objection is said that if argued it would dispose of the whole appeal. The applicant on the other hand complained that such application can only be entertained after the appeal has been admitted pursuant to the provisions of order XLI rule 8B of the Civil Procedure rules. He therefore saw the preliminary objection to be premature.
The respondent on the other hand is of the view that a preliminary objection can be raised at any stage even before admission of the appeal.
The applicant has also raised an interesting view that a respondent is expected to file grounds of opposition or a replying affidavit in response to a motion or a summons.
The applicant is of the view that the law does not recognize a preliminary objection as a form of response to a summons or a motion.
The view I take is that a preliminary may be taken at any time of the proceedings so long as the same qualifies to be defined as such. It is well settled that a preliminary objection consists of a point of law which has been pleaded, or which if argued as a preliminary point may dispose of the suit or the appeal. I am of the view that the provisions of order L rule 1 of the Civil Procedure rules cannot prevent a litigant from raising well merited preliminary points of law. I do not subscribe to the view that order XLI rule 8B bars a party from having the appeal determined before admission.
The upshot therefore is that I find that the preliminary objection is properly raised. The Respondent is given the green light to proceed with the same. The applicant’s objection is overruled with costs to the Respondent.
DATED AND DELIVERE THIS 4th DAY OF March 2005
J.K. SERGON
JUDGE