[2004] KEHC 1487 (KLR)
The court found that the preliminary objection was raised too late, after the parties had already amended pleadings and entered into consent orders over a period of four years. The court emphasized that preliminary objections must be taken at the earliest opportunity, and failure to do so precludes their...
Source-derived case information.
- Citation
- [2004] KEHC 1487 (KLR)
- Parties
- Plaintiff: Fredrick Kibet Chesire; Defendant: Raymond W. Bomet
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 90 of ??
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Preliminary Objection, Timeliness of Objection, Consent Orders, Estoppel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kibet Chesire
Plaintiff
Raymond W. Bomet
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the plaintiff's counsel is properly before the court at this stage of proceedings.
- 2 Whether the timing of the objection precludes its consideration.
- 3 Whether consent orders entered previously should be declared null and void if the objection is upheld.
Ratio Decidendi
The court found that the preliminary objection was raised too late, after the parties had already amended pleadings and entered into consent orders over a period of four years. The court emphasized that preliminary objections must be taken at the earliest opportunity, and failure to do so precludes their consideration at a later stage. The plaintiff's counsel, having participated in the proceedings without raising any objections previously, is estopped from raising the objection now. Accordingly, the preliminary objection does not qualify to be upheld in the circumstances and is dismissed with costs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
HCCC. NO 90 / 2000
FREDRICK KIBET CHESIRE ………………………………………………………………PLAINTIFF
VERSUS
RAYMOND W. BOMETT…………………………………………………………….. DEFENDANT
RULING
I have taken into account the issues raised in the preliminary objection that is now before me, and the submissions of both counsel and I do note that it was not very strenuously opposed, save that Mr. Ngeno for the defendant intimated that should the preliminary objection be upheld, then the court should find that all consent orders entered between, the parties should of essence be declared null and void as the defendants counsel might not have had an audience before the court. He also took issue with the timing of his objection and in the alternative urged this court to find that the plaintiffs are estopped to raise their objection at this stage.
It is common ground that this suit was commenced by way of a plaint on 10th January 2000. It is also common ground that since then, the plaint has been amended not only once, but twice. It is also on record that at no time did the plaintiff counsel raise the objections that he raises now, during the four years while the suit has been a waiting prosecution. Needless to say, the parties have entered consent without the plaintiff raising a finger on any one as the occasions. What I am leading to is a finding that it is rather late in the day, for the plaintiff’s counsel to take a preliminary objection at this stage. It is trite law that preliminary objections should be taken at the earliest available opportunity. This one cannot be an objection that would qualify to fall within the ambit of preliminary objections that can be upheld in the circumstances. I do therefore dismiss it with costs.
Dated and delivered at Eldoret this 29th day of June 2004
JEANNE GACHECHE
JUDGE
Delivered in the presence of:-