[2013] KEHC 1666 (KLR)

[2013] KEHC 1666 (KLR)

The court held that the respondent's preliminary objection was improperly raised because it was based on factual matters relating to alleged conflict of interest, which require evidence and cannot be determined as a pure point of law. The Mukisa Biscuit case remains the authoritative position on the nature of preliminary objections, and the respondent should have filed a formal application supported by affidavit to seek the disqualification of Simba & Simba Advocates. The authorities cited by the respondent did not support the use of a preliminary objection for such issues. Consequently, the preliminary objection was disallowed, and the applicant was awarded costs.

Citation
[2013] KEHC 1666 (KLR)
Parties
Applicant: Retirement Benefits Authority; Respondent: Trustees of Pyrethrum Board of Kenya Staff Superannuation Scheme
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
30 October 2013
Case Number
Winding Up Cause 24 of 2013
Procedural Posture
Winding Up Cause / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
JB Havelock
Legal Topics
Preliminary Objection, Conflict of Interest, Advocate Disqualification, Winding Up Procedure
Source Language
English
Civil Procedure Commercial and Corporate Preliminary Objection Conflict of Interest Advocate Disqualification Winding Up Procedure

Case Brief

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Parties

Retirement Benefits Authority

Applicant

Trustees of Pyrethrum Board of Kenya Staff Superannuation Scheme

Respondent

Procedural Posture

Winding Up Cause / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the issue of conflict of interest and advocate disqualification can be raised by way of a preliminary objection.
  2. 2 Whether Simba & Simba Advocates should be disqualified from representing the applicant due to alleged conflict of interest.

Ratio Decidendi

The court held that the respondent's preliminary objection was improperly raised because it was based on factual matters relating to alleged conflict of interest, which require evidence and cannot be determined as a pure point of law. The Mukisa Biscuit case remains the authoritative position on the nature of preliminary objections, and the respondent should have filed a formal application supported by affidavit to seek the disqualification of Simba & Simba Advocates. The authorities cited by the respondent did not support the use of a preliminary objection for such issues. Consequently, the preliminary objection was disallowed, and the applicant was awarded costs.

Court Disposition

preliminary objection dismissed

Orders

  • The respondent's preliminary objection dated 29th October 2012 is disallowed.
  • Parties to take a fresh date at the Registry for the hearing of the Petition dated 11th September 2012.