[2009] KEHC 2602 (KLR)
The court held that the Preliminary Objection was misconceived on all grounds. The use of Notice of Motion was appropriate even if the orders could be sought by Chamber Summons, as established by the Court of Appeal. Procedural inadequacies or failure to comply with specific provisions of law do not constitute valid...
Source-derived case information.
- Citation
- [2009] KEHC 2602 (KLR)
- Parties
- Plaintiff: Francis Nyamai Mwanzia; Defendant: Rose Wangari Ndegwa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 158 of 2007
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled with costs to the defendant
- Legal Topics
- Preliminary Objection, Notice of Motion, Chamber Summons, Affidavit Evidence, Order Vi Rule 13
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Nyamai Mwanzia
Plaintiff
Rose Wangari Ndegwa
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the defendant's Notice of Motion is defective for seeking orders that can be granted by Chamber Summons and/or Notice of Motion.
- 2 Whether inadequacy in the application or failure to comply with specific provisions of law is a proper basis for a Preliminary Objection.
- 3 Whether certain paragraphs of the supporting affidavit can be struck out and if that invalidates the Notice of Motion.
Ratio Decidendi
The court held that the Preliminary Objection was misconceived on all grounds. The use of Notice of Motion was appropriate even if the orders could be sought by Chamber Summons, as established by the Court of Appeal. Procedural inadequacies or failure to comply with specific provisions of law do not constitute valid grounds for a Preliminary Objection. Furthermore, objections to certain paragraphs of the supporting affidavit, even if successful, would not invalidate the Notice of Motion. Therefore, the Preliminary Objection was overruled with costs to the defendant.
Court Disposition
preliminary objection overruled with costs to the defendant
Orders
- The Preliminary Objection is overruled.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 158 of 2007
FRANCIS NYAMAI MWANZIA………………………....PLAINTIFF
VERSUS
ROSE WANGARI NDEGWA……………………......DEFENDANT
RULING
I have heard counsels’ submissions on the Preliminary Objection raised by counsel for the plaintiff. The Preliminary Objection challenges the defendant’s Notice of Motion on the basis that it seeks distinct orders that can be given on a Chamber Summons and/or a Notice of Motion. The Preliminary Objection further challenges the inadequacy of the application and lastly the Preliminary Objection challenges certain paragraphs of the affidavit supporting the Notice of Motion of the defendants.
With respect to the challenge raised on the basis that orders sought can be granted in a Chamber Summons and/or Notice of Motion, I am afraid the objection is misconceived. Where an applicant seeks orders that can be given on a Chamber Summons and a Notice of Motion, it has been held that the Notice of Motion is the appropriate mode to approach the court. The Court of Appeal has gone further and indeed settled the issue and stated that an application should not be defeated merely because the incorrect procedural mode has been used.
With respect to the objection raised on, the basis that the defendant’s Notice of Motion offends the provisions of Order VI Rule 13 of the Civil Procedure Rules, I am afraid the objection has not been well taken as failure to adequately comply with any specific provision of the Law cannot be the basis of Preliminary Objection. In any event inadequacy in the facts supporting an application is not a proper basis for a Preliminary Objection.
With regard to the objection raised against certain paragraphs of the supporting affidavit, I am also of the view that the objection has been improperly raised. Even if the impugned paragraphs were to be struck out, that perse would not invalidate the defendant’s Notice of Motion.
For all those reasons the Preliminary Objection is overruled with costs to the defendant.
DATED AND DELIVERED AT MOMBASA THIS 2ND DAY OF JUNE 2009.
F. AZANGALALA
JUDGE
Read in the presence of:-
Ms Mango for the Plaintiff and Mr. Kinyua for the Defendant.
F. AZANGALALA
JUDGE
2ND JUNE 2009