[2022] KEHC 1136 (KLR)
The court held that the preliminary objection did not raise any pure point of law but instead raised disputed issues of fact, such as the existence of the applicant company, locus standi, and the authority of the applicant's advocates. These matters require factual determination and cannot be resolved at the...
Source-derived case information.
- Citation
- [2022] KEHC 1136 (KLR)
- Parties
- Applicant: Athi Stores Limited; Respondent: Rubinder Singh Choudrie; Respondent: Kamaljeet Singh Bhari; Respondent: Reena Varma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1254 of 2017
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JV Juma
- Legal Topics
- Succession Proceedings, Revocation of Grant, Preliminary Objection, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Athi Stores Limited
Applicant
Rubinder Singh Choudrie
Respondent
Kamaljeet Singh Bhari
Respondent
Reena Varma
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raises a pure point of law capable of determining the suit.
- 2 Whether issues of locus standi are relevant in an application seeking reinstatement of a dismissed application.
- 3 Whether the preliminary objection is premature in the context of an application for reinstatement.
Ratio Decidendi
The court held that the preliminary objection did not raise any pure point of law but instead raised disputed issues of fact, such as the existence of the applicant company, locus standi, and the authority of the applicant's advocates. These matters require factual determination and cannot be resolved at the preliminary objection stage. The court further found that the preliminary objection was premature as it attacked an application for reinstatement rather than the substantive application. Consequently, the preliminary objection was dismissed for lacking merit, and costs were awarded to the applicant.
Court Disposition
preliminary objection dismissed
Orders
- The Notice of Preliminary Objection dated 12th October 2021 is dismissed.
- Costs are awarded to the applicant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO 1254 OF 2017
IN THE MATTER OF THE CHILDREN ACT NO. 8 LAWS OF KENYA
AND
IN THE MATTER OF THE ESTATE OF MADAN-MOHAN SINGH VARMA (DECEASED)
IN THE MATTER OF SUMMONS FOR REVOCATION OF GRANT OF PROBATE WITH WRITTEN WILL
AND
ATHI STORES LIMITED.......................................................................................APPLICANT
VERSUS
RUBINDER SINGH CHOUDRIE..............................................................1ST RESPONDENT
KAMALJEET SINGH BHARI..................................................................2ND RESPONDENT
REENA VARMA........................................................................................3RD RESPONDENT
RULING
1. Before this court for determination is the Notice of Preliminary Objection dated 12th October 2021 challenging the Application dated 23rd September 2021 filed by the Applicant ATHI RIVER STORES LIMITED.
2. The Preliminary Objection was canvassed by way of written submissions. The Respondents filed the written submissions dated 22nd November 2021 whilst the Applicant relied upon its written submissions dated 28th October 2021.
3. In the Application dated 23rd September 2021 the Applicant sought to reinstate the main application dated 23rd September 2021 which had been dismissed for non-attendance.
4. Therefore the Notice of Preliminary Objection which basically attacked the Notice of Motion dated 23rd September 2021 was premature. The objection raised issues of ‘locus standi’ which are not relevant in an application seeking reinstatement of an application.
5. It is trite that a Preliminary Objection must raise a pure point of law which is capable of determining the suit.
6. In the celebrated case of MUKISA BISCUIT MANUFACTURING COMPANY VS WEST END DISTRIBUTORS LTD 1969 E.A it was held as follows:-
“…A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which isargued 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.” (Own emphasis).
7. The Preliminary Objection filed herein raises issues which are disputed, none of which discloses a pure point of law e.g.,
- Whether the Applicant is a non-existent company
- Whether a non-family member can file a summons to revoke a Grant.
- Whether the Applicants Advocates had proper instructions.
8. The real issue for determination in the application of 23rd September 2021 is whether or not the main application ought to be reinstated. The issue was not addressed in the Preliminary Objection.
9. For the above reasons I find no merit in the Notice of Preliminary Objection dated 12th October 2021. The same is hereby dismissed and costs are awarded to the Applicant.
DATED IN NAIROBI THIS 4TH DAY OF MARCH 2022.
........................................
MAUREEN A. ODERO
JUDGE