[2019] KEHC 11426 (KLR)
The court found that the preliminary objection lacked merit because the application for substitution had already been allowed by a court order on 14.6.2016. The respondent's challenge to the substitution was therefore misplaced; the only lawful avenues available were review or appeal of the substitution order, not a...
Source-derived case information.
- Citation
- [2019] KEHC 11426 (KLR)
- Parties
- Applicant: Hannah Wanjiku Kiniti; Respondent: Mwangi Kabaiku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1198 of 2002
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Abatement of Suit, Substitution of Parties, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Wanjiku Kiniti
Applicant
Mwangi Kabaiku
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the substitution of a deceased respondent after alleged abatement of the suit contravenes Order 24 Rule 7 of the Civil Procedure Rules.
- 2 Whether the preliminary objection raised on the ground of abatement is valid after the court had already allowed substitution.
Ratio Decidendi
The court found that the preliminary objection lacked merit because the application for substitution had already been allowed by a court order on 14.6.2016. The respondent's challenge to the substitution was therefore misplaced; the only lawful avenues available were review or appeal of the substitution order, not a preliminary objection. The court emphasized that a preliminary objection must be based on a pure point of law and cannot be used to challenge matters already determined by the court or to revisit issues that require the exercise of judicial discretion. Accordingly, the preliminary objection was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 9.7.2018 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 1198 OF 2002
IN THE MATTER OF THE ESTATE OF KINITI NDURA (DECEASED)
HANNAH WANJIKU KINITI..................................APPLICANT
VERSUS
MWANGI KABAIKU............................................RESPONDENT
RULING
1. The Applicant in the Application dated 31. 12. 2015 (Hannah Wanjiku Kiniti) was granted leave to substitute one MWANGI KABAIKU (Deceased) with RACHEL NJANGO MWANGI.
2. The Preliminary Objection dated 9. 7.2018 is raised against the said substitution on the grounds that the suit had already abated and the suit contravenes order 24 Rule 7 of the Civil Procedure Rules and that whatsoever attempts to resuscitate the same are by law void.
3. The subject of preliminary objection has been addressed over a period of time. One of the most outstanding cases is that of Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors (1969) EA 696 where Sir Charles Newbold, P. stated as follows,
“A preliminary objection is in the nature of what used to be 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 if what is sought is the exercise of juridical discretion. The improper raising of points by way of preliminary objection does nothing and unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”
4. I find that the Preliminary objection has no basis as the application for substitution was allowed on 14. 6.2016. The only recourse for the respondent is seek a review of the said order or to file an appeal against it.
5. The Preliminary objection dated 9. 7.2018 is accordingly dismissed with no orders as to costs.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 21ST DAY OF JUNE, 2019
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI.