[2023] KEHC 27438 (KLR)

In re Estate of Akram Amrani Mohamed (Deceased) (Succession Cause E113 of 2021) [2023] KEHC 27438 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27438 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause E113 of 2021

G Mutai, J

December 8, 2023

IN THE MATTER OF THE ESTATE OF AKRAM AMRANI MOHAMED (DECEASED)

Between

Amrani Akram Amran

1st Petitioner

Hindu Akram Amran

2nd Petitioner

Mariam Akram Amran

3rd Petitioner

and

Shadia Akram Amran

1st Applicant

Zainab Mwambu Tsuma aka Zeinab Akram

2nd Applicant

Ruling

1. Vide Notice of Motion dated 13th October 2023, the 1st and 2nd Applicants sought to stay the proceedings in the instant case pending the hearing and determination of Mombasa HCFA No E004 of 2023; Shadia Akram & Another versus Hindu Akram & 5 others.

2. The Petitioners/Respondents opposed the said application. Their counsel, vide a Notice of Preliminary objection dated 24th October 2024, sought to have the said application dismissed on 6 grounds, namely: -1. That this Court lacks jurisdiction to hear and determine the matter as the application is res judicata;2. That the preliminary objection raised by the Applicants and dated 22nd May 2023 was dismissed by this Court vide a ruling dated 14th July 2023. No appeal was lodged against the said decision;3. The application dated 13th October 2023 contravenes Order 42 Rule 6(2) (a) of the Civil Procedure Rules, 2010, as it was filed after an inordinate delay, considering that the impugned ruling sought to be appealed was delivered by the Hon Kadhi on 30th January 2023;4. That application had been overtaken by events as the Petitioners/Respondents had, pursuant to the directions of the Court, filed Summons for Confirmation of Grant;5. That the appeal filed by the Applicants in HCFA No E004 of 2023 is not arguable and has no chance of success; and6. The Applicant’s said application seeks to delay justice and is thus contrary to the oxygen principle provided for under sections 1A and 1B of the Civil Procedure Act.

3. The Preliminary Objection was opposed by the Applicants. On 26th October 2023, I directed that since the Preliminary Objection contested this Court’s jurisdiction, it would be heard first so that in the event that I determined that the Court has no jurisdiction, the Court would down its tools.

4. The Preliminary Objection was argued on 7 November 2023. Mr. Mureithi, learned counsel for the Petitioners/Respondents, urged me to dismiss the application with costs, while Mr. Lewa, for the Applicants, submitted that I should dismiss the Preliminary Objection as it had no merit.

5. I have carefully considered the parties’ submissions against the applicable law. Has a case been made for upholding the preliminary objection?

6. The circumstances under which a preliminary objection may be raised are well settled. Law, JA in Mukisa Biscuit Co Ltd v West End Distributors Ltd [1969] EA 696 stated that:-“a preliminary objection consists of point of law which has been pleaded, or which arises by dear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit.”

7. In the said decision, Sir Charles Newbold, P, concurring with Law JA, added that:-“A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

8. Applying the above decision to the instant matter, can it be said that there is a proper preliminary objection?

9. In this Court’s opinion, there isn’t. I say so because the grounds relied upon by the Petitioners/Respondents call upon this Court to undertake factual enquiry or are in regard to matters that are discretionary in nature:-1. The Courts, when determining whether or not there has been an inordinate delay, exercise discretionary powers;2. Whether or not the application has been overtaken by subsequent events requires a factual enquiry;3. The Court cannot determine if the appeal has no merit without first ascertaining its legal and factual merit; and4. Whether or not the Applicants desire to delay justice contrary to the court's overriding objectives is not discernible from the pleadings and thus requires factual analysis.

10. This Court does not also agree that dismissal of the Applicants’ previous preliminary objection renders the application dated 13th October 2023 res judicata

Disposition 11. From the foregoing, I find and hold that the Notice of Preliminary Objection dated 24th October has no merit.

12. The preliminary objection is based on disputed facts and, therefore, does not meet the test in the Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors Ltd [1969]EA 696.

13. It is also not the case in my view that the Notice of Motion dated 13th October 2023 is res judicata. In my view the issues raised in the said application have not been heard and fully determined.

14. For the foregoing reasons, the Preliminary Objection fails. It is dismissed. I make no orders as to costs.

15. Orders accordingly.

DATED AND SIGNED THIS 8TH DAY OF DECEMBER 2023 AT MOMBASA.GREGORY MUTAIJUDGEIn the presence of:Mr Mureithi for the Petitioner/Respondents;Mr. Lewa, for the Applicants; andArthur - Court Assistant.