[2004] KEHC 235 (KLR)
The court found that the preliminary objection based on lack of notice under section 13A of the Government Proceedings Act does not arise at this stage because the Attorney General was joined as a third party after leave of court was granted. The accrual of the requirement for notice should be considered from the...
Source-derived case information.
- Citation
- [2004] KEHC 235 (KLR)
- Parties
- Plaintiff: Darshan Shah; Defendant: Roopam (K) Limited; Defendant: Hemal Haria; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 52 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Preliminary Objection, Third Party Proceedings, Government Proceedings Notice, Leave of Court, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Darshan Shah
Plaintiff
Roopam (K) Limited
Defendant
Hemal Haria
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit was instituted contrary to section 13A of the Government Proceedings Act for lack of 30 days' notice to the Attorney General.
- 2 Whether the preliminary objection on this ground is properly raised at this stage of the proceedings.
Ratio Decidendi
The court found that the preliminary objection based on lack of notice under section 13A of the Government Proceedings Act does not arise at this stage because the Attorney General was joined as a third party after leave of court was granted. The accrual of the requirement for notice should be considered from the point at which the Attorney General is served as a third party, not from the original institution of the suit. Since the third party proceedings were properly initiated and the Attorney General was served accordingly, the objection is premature and cannot be sustained at this stage. The court therefore overruled the preliminary objection, awarding costs to the plaintiff and the...
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
- Costs of the objection are awarded to the plaintiff and the defendants.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 52 of 2001
DARSHAN SHAH ………………………..............................…………………..PLAINTIFF
VERSUS
ROOPAM (K) LIMITED ………..……......................……...…………….. 1ST DEFENDANT
HEMAL HARIA ………….………........................…………...………… 2ND DEFENDANT
RULING
ON A PRELIMINARY OBJECTION
This is an application by the Attorney General that this suit was instituted contrary to seciton 13(a) of the Government Proceeding Act. Namely no notice was issued 30 days before the suit was filed under section 13 A. The application is being opposed to.
It is noted herein that the suit before me was filed against a defendant. He in turn took out two 3rd party proceedings whereby he joined the attorney General as the 1st defendant 3rd party. This means that the application being ex parte the Attorney General would come aware of the case at the time of service.
I hereby find that the suit should begin to accrue at the stage in which leave was granted. If 3rd party proceeding were not filed nor served after the court giving leave and within the given time there is therefore cause for a preliminary objection
At this state the preliminary objection does not arise and must await the trial.
I hereby over rule this preliminary objection with costs to the defendants and the plaintiff.
Dated this 9th day of December 2004 at Nairobi.
M.A. ANG’AWA
JUDGE
V. Gosmani for plaintiff
S.B.N. Atambo for the Attorney General