[2003] KEHC 724 (KLR)
The court found that the preliminary objection could not be sustained on any of the grounds raised. The issue of limitation was not clear-cut, as the date the cause of action arose was disputed and depended on when the appeal decision was communicated to the plaintiff. The objection regarding the verifying affidavit...
Source-derived case information.
- Citation
- [2003] KEHC 724 (KLR)
- Parties
- Plaintiff: Francis Mukunga Waweru; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1269 of 2000
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection refused
- Judges
- AI Hayanga
- Legal Topics
- Limitation of Actions, Verifying Affidavit Requirements, Preliminary Objection, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mukunga Waweru
Plaintiff
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time barred under the relevant limitation statutes.
- 2 Whether the plaint is defective for lack of a proper verifying affidavit as required by the Civil Procedure Rules.
- 3 Whether the proper procedure for quashing the Commissioner’s action is by judicial review application for certiorari.
Ratio Decidendi
The court found that the preliminary objection could not be sustained on any of the grounds raised. The issue of limitation was not clear-cut, as the date the cause of action arose was disputed and depended on when the appeal decision was communicated to the plaintiff. The objection regarding the verifying affidavit was dismissed because the affidavit was based on knowledge, which is sufficient under the rules. The third ground, concerning the need for judicial review, was not relevant as the plaintiff had abandoned the related prayer. The court applied the principle that preliminary objections must raise pure points of law that are decisive, and found that none of the objections met this...
Court Disposition
preliminary objection refused
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPULBIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 1269 OF 2000
FRANCIS MUKUNGA WAWERU……………………………..PLAINTIFF
VERSUS
ATTORNEY GENERAL………………………………………DEFENDANT
RULING
There was a preliminary point raised by Mr. Okello and argued in Limine that the suit here is time barred and that the plaint is not accompanied by a verifying affidavit as required under Order 17 and therefore, defective and that because the affidavit is defective and does not comply with requirements of Order 18 of the Civil Procedure Rules in that it fails to distinguish between averments of knowledge and belief or grounds and source of the same, thirdly, that quashing the Commissioner’s action ought to be by a Judicial Review application for certiorari and order for reinstatement.
Mr. Rakoro for Plaintiff opposes the application saying that while he was dismissed in 1990, he appealed in 1992 and appeal was dismissed in 1999 and result conveyed to him by letter of 23. 03. 2002 after when he sent notice of intention to sue on 29. 03. 2002 and suit was filed on 9. 08. 2000 which was within time under both the Public Authorities Act Cap 39 and the Limitation Act Cap 22 of the Kenya Laws. He also said that verification affidavit does not offend Order 18.
The preliminary objection here is in all the grounds cited cannot be sustained. They are not decisive in law. The first question of Limitation depends on the time calculated from the date the cause action arose. It is obvious the dates are not agreed neither is it agreed whether the cause of action arose after the appeal or on communication of the decision of that appeal to the Plaintiff. The objector has not stated which date is relied on, and as for verification affidavit, I have noted this to have been an affidavit of knowledge and there cannot be any doubt. The third issue does not arise as Plaintiff abandoned the last prayer.
The principle upon which the Court orders preliminary point is now trite following Court of Appeal decision in the case of MUKISA BISCUIT MANUFACTURING COMPANY LIMITED vs. WESTEND DISTRIBUTORS COMPANY LIMITED (1969) EA 696.
These points raised are not consonant and must fail. Preliminary objection refused.
DELIVERED this 26th day of September 2003.
A. I. HAYANGA
JUDGE
Read to Mary for Applicant