[2015] KEHC 4671 (KLR)

[2015] KEHC 4671 (KLR)

The court found that the preliminary objection lacked merit on all grounds. The defendant, though not the registered proprietor, was properly sued as the legal representative of the deceased owner. The issue of res judicata did not arise because the previous suit was withdrawn and not determined on its merits. Non-compliance with the rule regarding payment of costs after withdrawal of a previous suit is not a valid ground for a preliminary objection; at most, it may warrant a stay of proceedings, not a striking out. Accordingly, the preliminary objection was dismissed with costs to the plaintiff.

Citation
[2015] KEHC 4671 (KLR)
Parties
Plaintiff: Fred Simiyu Okiya; Defendant: Dismas Jefether Ekisa
Court
High Court
Court Station
High Court at Kitale
Jurisdiction
Kenya
Judgment Date
26 May 2015
Case Number
Civil Case 47 of 2013
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
EO Obaga
Legal Topics
Preliminary Objection, Res Judicata, Legal Representative Status, Withdrawal of Suit
Source Language
English
Civil Procedure Preliminary Objection Res Judicata Legal Representative Status Withdrawal of Suit

Case Brief

Summary, issues, holding and outcome

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Parties

Fred Simiyu Okiya

Plaintiff

Dismas Jefether Ekisa

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the suit is bad in law as the defendant is not the registered proprietor.
  2. 2 Whether the suit is res judicata due to a previous withdrawn suit.
  3. 3 Whether non-compliance with Order XXIV Rule 4 (now Order 25 Rule 4) is a valid preliminary objection.

Ratio Decidendi

The court found that the preliminary objection lacked merit on all grounds. The defendant, though not the registered proprietor, was properly sued as the legal representative of the deceased owner. The issue of res judicata did not arise because the previous suit was withdrawn and not determined on its merits. Non-compliance with the rule regarding payment of costs after withdrawal of a previous suit is not a valid ground for a preliminary objection; at most, it may warrant a stay of proceedings, not a striking out. Accordingly, the preliminary objection was dismissed with costs to the plaintiff.

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is dismissed with costs to the plaintiff.