[2003] KEHC 552 (KLR)
The court held that a preliminary objection must be based on pure points of law and cannot be entertained where the court is required to investigate facts, such as the existence of another suit involving the same parties and issues. Since the defendants' preliminary objection required reference to affidavits and...
Source-derived case information.
- Citation
- [2003] KEHC 552 (KLR)
- Parties
- Plaintiff: Halima Mohamed Kassim & Another; Defendant: Abdi Aziz Ahmed & Others
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 264 of 2002
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Res Judicata, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Halima Mohamed Kassim & Another
Plaintiff
Abdi Aziz Ahmed & Others
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a preliminary objection can be raised where the court must investigate facts.
- 2 Whether the existence of another suit involving the same parties and issues can be determined without evidence.
Ratio Decidendi
The court held that a preliminary objection must be based on pure points of law and cannot be entertained where the court is required to investigate facts, such as the existence of another suit involving the same parties and issues. Since the defendants' preliminary objection required reference to affidavits and evidence to establish the existence and similarity of the other suit, it did not meet the threshold for a preliminary objection. The court therefore dismissed the preliminary objection with costs.
Court Disposition
preliminary objection dismissed
Orders
- The 1st, 3rd and 4th Defendants’ Preliminary Objection dated March 6, 2001 is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL SUIT NO. 264 OF 2002 (Formerly Nairobi HCCC No. 209 of 2001)
HALIMA MOHAMED KASSIM & ANOTHER ………………….PLAINTIFF VERSUS ABDI AZIZ AHMED & OTHERS ……………………………...DEFENDANT
RULING
I agree with Mrs Mbanya for the Plaintiff that a Preliminary Objection cannot be raised where the Court has to investigate any facts. The 1st , 3rd and 4th Defendants’ Preliminary Objection dated March 6, 2001 which is under consideration was based on the following grounds:
“1. There exists a part heard suit in NKU HCC NO. 517 OF 1999 between the same parties or between the same parties under whom they or any of them claim or litigating under the same title.
2. The issues in this suit are also directly and substantially in issue in NKU HCC NO. 517 OF 1999 which is part heard and now fixed by consent for hearing on May 14, 2001.
3. This Court should proceed with this suit as per Section 6 Civil Procedure Act otherwise this matter should be stayed generally and transferred to Nakuru.
4. NKU HCC NO. 517 OF 1999 has stopped the 2nd Defendant from dealing with the suit land in any manner whatsoever and the application herein is duplication of the same and the issues or substance of the same is res judicata as authorised by Section 7 Civil Procedure Act.
5. The suit herein and the application are misconceived and bad in law.”
Whether or not there exists another suit involving the same parties and similar issues is a matter which requires evidence of the existence of the other suit. It is not surprising, therefore, that at the hearing of the Preliminary Objection, Counsel referred to affidavits filed in the matter. That cannot be the case where the Court is considering a Preliminary Objection which must be limited to points of law only. The decisions cited are irrelevant in the circumstances.
I, therefore, dismiss the 1st, 3rd and 4th Defendants’ Preliminary Objection dated March 6, 2001 with costs.
Dated and Delivered at Nakuru this 29th day of July, 2003.
ALNASHIR VISRAM
JUDGE