[2013] KEHC 3255 (KLR)
The court held that the issues raised by the respondent were procedural and did not go to the substance of the dispute. The previous striking out of the application was not a dismissal on the merits, and the applicants were entitled to bring a fresh application after regularizing the procedural defect. The court...
Source-derived case information.
- Citation
- [2013] KEHC 3255 (KLR)
- Parties
- Plaintiff: Christ Chapel Ministries; Defendant: Gloria Ndunge Katee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 142 of 2012
- Procedural Posture
- Environmental and Land Case / Ruling on Preliminary Objection
- Outcome
- Preliminary objection overruled; application to be heard on merits.
- Judges
- LN Gacheru
- Legal Topics
- Locus Standi, Preliminary Objection, Res Judicata, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christ Chapel Ministries
Plaintiff
Gloria Ndunge Katee
Defendant
Procedural Posture
Environmental and Land Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the applicants had locus standi to file the Notice of Motion dated 23/1/2013.
- 2 Whether the matter was res judicata due to a previous ruling striking out a similar application.
- 3 Whether procedural objections should bar the hearing of the substantive application.
Ratio Decidendi
The court held that the issues raised by the respondent were procedural and did not go to the substance of the dispute. The previous striking out of the application was not a dismissal on the merits, and the applicants were entitled to bring a fresh application after regularizing the procedural defect. The court emphasized the overriding objective of the Civil Procedure Act and Article 159(2) of the Constitution, which require courts to focus on substantive justice rather than procedural technicalities. Accordingly, the preliminary objection was overruled, and the applicants were allowed to prosecute their Notice of Motion on its merits.
Court Disposition
Preliminary objection overruled; application to be heard on merits.
Orders
- The preliminary objection raised by the respondent on 16/4/2013 is overruled.
- The Notice of Motion dated 23/1/2013 shall be heard and determined on merit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Environmental & Land Case 142 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
CHRIST CHAPEL MINISTRIES ...........................PLAINTIFF
=VERSUS
GLORIA NDUNGE KATEE.................................DEFENDANT
RULING:
The Applicants herein brought a Notice of Motion dated 23/1/2012 and Interim Orders were granted. On 16/4/2013, Counsel for the Respondent raised a preliminary objection and stated that the applicants had no locus standi to file the notice of Motion dated 23/1/2013 as they had not been enjoined in the suit. That the matter was Res-judicata as it had been decided by Judge Ougo who struck out the applicants Notice of Motion dated 20/3/2012.
The Respondent urged the court to vacate the orders issued on 23/1/2013 as the suit is nulland void by virtue of the fact that plaintiffs did not have locus to bring out the instant application.
I have considered the rival arguments. I have noted that the Notice of Motion dated 20/3/2012 was indeed struck out by Judge Ougo on 24/9/2012. It was not dismissed. The applicant could still bring similar application after regularizing the defector want that caused the Motion to be struck out.
I have considered the provisions of Section 1A and 1B of the Civil Procedure Act that touches on the overriding objectives of the Act. I have also considered the provisions of Article 159 (2) of the constitution which provides that :-
“In exercise of judicial authority, the court shall be guided by....justice shall be administered without undue regard to procedural technicalities”.
The issues that the Respondent has raised are procedural in nature. They can be raised during the prosecution of the Notice of Motion and will be considered in the final analysis.
The overriding objective of the Civil Procedure Act is to have Civil Disputes resolved justly and expeditiously. The applicants should be given an opportunity to prosecute their Notice of Motion dated 23/1/2013 and the same be decided on merit.
Consequently the Court overrules the Respondent preliminary objection raised on 16/4/2013 and orders that Notice of Motion dated 23/1/2013 be heard and determined on merit.
Dated, signed and delivered this 24th May, 2013
L. N. GACHERU
JUDGE
In the Presence of:-
………………………………………For the Plaintiffs
……………………………………...For the Defendants
…………………………………......Court Clerk
L. N. GACHERU
JUDGE
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