[2017] KEHC 5677 (KLR)
The court found that the preliminary objection raised by the respondents was not a true preliminary objection because it was general, vague, and did not specify the legal grounds with sufficient clarity. Furthermore, the respondents' act of filing a replying affidavit alongside the preliminary objection indicated...
Source-derived case information.
- Citation
- [2017] KEHC 5677 (KLR)
- Parties
- Applicant: Jane Njoki Gituanja; Respondent: Michael Mungai Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 93 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- DN Musyoka
- Legal Topics
- Preliminary Objection, Locus Standi, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Njoki Gituanja
Applicant
Michael Mungai Kimani
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondents is competent and properly framed as a pure point of law.
- 2 Whether the applicant has locus standi and whether the application is an abuse of the court process.
Ratio Decidendi
The court found that the preliminary objection raised by the respondents was not a true preliminary objection because it was general, vague, and did not specify the legal grounds with sufficient clarity. Furthermore, the respondents' act of filing a replying affidavit alongside the preliminary objection indicated that the objection was not based solely on a pure point of law, as required by established legal principles. The court held that a preliminary objection and a replying affidavit cannot stand together, and the presence of both demonstrates that the objection is not a pure point of law. Consequently, the preliminary objection was overruled as lacking merit.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection dated 29th February 2016 is overruled.
- The applicant shall have costs of the objection.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 93 OF 2013
IN THE MATTER OF AN APPLICATION BY JANE NJOKI GITUANJA
RULING
1. The respondents to the Motion dated 15th December 2015 have raised a preliminary objection to that application, on the grounds that it is premature, incompetent, lacking locus standi and is an abuse of the court process.
2. The objection as framed is very general in nature, and does not directly point out the particular aspects of the Motion which render it premature or incompetent or an abuse of process. There is a vagueness around it which no doubt embarrasses the applicant in terms of how she can competently and effectively answer the objection.
3. I note that the respondents have filed a replying affidavit through Michael Mungai Kimani, sworn on 2nd March 2016. A preliminary objection raises a pure point of law, and should be resolved without the court having to look out for facts. Consequently, a preliminary objection and a replying affidavit cannot possibly stand together. Filing both no doubt means that the preliminary objection is not in fact a preliminary objection.
4. There cannot be any merit in the preliminary objection dated 29th February 2016. I shall overrule it. The applicant shall have costs of the objection. The applicant is at liberty to have her application dated 15th December 2015 fixed for hearing.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE