[2010] KEHC 2112 (KLR)
The court found that the preliminary objection raised by the defendants did not have merit. There was no sufficient evidence to show that the suit and chamber summons were frivolous, vexatious, or an abuse of process. The court also held that the existence of possible criminal proceedings did not deprive it of...
Source-derived case information.
- Citation
- [2010] KEHC 2112 (KLR)
- Parties
- Plaintiff: Durran Investments Limited; Plaintiff: Arleen Mburu; Defendant: Christopher Kanyingi Kibe; Defendant: Joel Kibe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 134 of 2010
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Jurisdiction, Verifying Affidavit, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Durran Investments Limited
Plaintiff
Arleen Mburu
Plaintiff
Christopher Kanyingi Kibe
Defendant
Joel Kibe
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit and chamber summons are frivolous, vexatious, or an abuse of the court process.
- 2 Whether the court lacks jurisdiction due to possible criminal prosecution on the same matter.
- 3 Whether the verifying affidavit is fatally defective for non-compliance with Order VII Rule 1 (1), (2) and Order III rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the preliminary objection raised by the defendants did not have merit. There was no sufficient evidence to show that the suit and chamber summons were frivolous, vexatious, or an abuse of process. The court also held that the existence of possible criminal proceedings did not deprive it of jurisdiction to hear the civil matter. Furthermore, the alleged defects in the verifying and supporting affidavits were not substantial enough to warrant striking out the suit or the chamber summons. As such, the preliminary objection was dismissed with costs to the plaintiffs.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 16th March 2010 is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 134 of 2010
1. DURRAN INVESTMENTS LIMITED)
2. ARLEEN MBURU)…………………………PLAINTIFFS/APPLICANTS
Versus
1. CHRISTOPHER KANYINGI KIBE)
2. JOEL KIBE)…………………………DEFENDANTS/RESPONDENT
RULING
I was to begin hearing of the Plaintiff’s chamber Summons dated 9th March 2010 prosecuted by Dr. John Khaminwa when the Defendant’s Counsel M/s Githinji raised a preliminary objection not only against the Chamber Summons but also against the Plaint stating that they both be struck out.The Preliminary Objection dated 16th March 2010 had been filed and served.
From what was brought to my attention during the hearing of the Preliminary Objection, I found no evidence or sufficient evidence proving:
1. That the Plaintiff’s suit and the Chamber Summons were frivolours, vexatious and an abuse of the process of the court;
2. That this court has no jurisdiction to hear and determine issues in the suit simply because criminal prosecution could also be maintainable for determination – concerning same matter;
3. That the verifying affidavit in support of the suit is fatally defective because provisions of Order VII Rule 1 (1), (2) and Order III rule 2 of the civil Procedure Rules have not been complied with;
4. That the supporting affidavit of Arleen Mburu sworn on 9th March 2010 is fatally defective and incompetent for failing to comply with Order III Rule 3 of the Civil Procedure Rules.
That being the position, I do find that this is a preliminary objection which, though rightly raised, has no merits to sustain it.The said Preliminary Objection is therefore dismissed with costs to the Plaintiffs.
Dated this 28th day of April 2010.
J.M. KHAMONI
JUDGE
Present:
………………………………..for the Applicants
………………………………..for the Respondents
Court Clerk:Kabiru