[2005] KEHC 2048 (KLR)
The court held that the issues raised in the preliminary objection, particularly regarding jurisdiction, involved factual matters that could only be properly determined upon examination of the record of appeal. As such, these issues were not suitable for determination as preliminary objections but should be...
Source-derived case information.
- Citation
- [2005] KEHC 2048 (KLR)
- Parties
- Appellant: James Mwangi Kiaragana; Respondent: Rebeccah Njeri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; appeal to proceed to hearing
- Legal Topics
- Jurisdiction of Tribunals, Preliminary Objection, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi Kiaragana
Appellant
Rebeccah Njeri
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an appeal from the Land Disputes Tribunal after its decision has been confirmed by the court.
- 2 Whether issues of jurisdiction and procedure should be determined as preliminary objections or within the substantive appeal.
Ratio Decidendi
The court held that the issues raised in the preliminary objection, particularly regarding jurisdiction, involved factual matters that could only be properly determined upon examination of the record of appeal. As such, these issues were not suitable for determination as preliminary objections but should be canvassed during the hearing of the main appeal. The preliminary objection was therefore overruled, and the appeal was ordered to proceed to hearing, with liberty for the respondent to raise the jurisdictional and procedural issues within the substantive appeal.
Court Disposition
preliminary objection overruled; appeal to proceed to hearing
Orders
- The preliminary objection is overruled.
- The appeal shall proceed to hearing.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Appeal 90 of 2002
JAMES MWANGI KIARAGANA ………………………..…………… APPELLANT VERSUS REBECCAH NJERI ………………………………………………….. RESPONDENT
R U L I N G
The advocate for the Respondent has raised a preliminary objection to the hearing of this appeal contending that the court does not have jurisdiction to entertain the appeal basically on two main grounds.
First, that the land Disputes Tribunal being a quasi judicial body and its decision having been confirmed by the court, the only available avenue is to move the court to quash such decision by way of order of judicial review, and secondly, the appellant having submitted himself to the jurisdiction of the Tribunal he cannot now turn that jurisdiction on appeal.
Counsel relied on a judgment of Hon. Khamoni J in Nyeri H.C.C. Appeal No. 58 of 2002, John Kibe Thuo v/s Daniel Ndungu Muchuna.
Mr. Kariuki who appeared for the Appellant submitted that the issue of jurisdiction was one of law and the appeal having been certified as raising issues of Law, it was properly before the court. He further contended that apart from jurisdiction there were other issues of law which ought to be dealt with in the appeal.
In my view the issues raised though weighty are not issues which ought to be dealt with as preliminary issues but ought to be canvassed at the hearing of the main appeal.
This is because there are certain factual basis which must be established from the record of appeal. For instance whether the Appellant raised any issue with regard to the jurisdiction of the Tribunal either at the Tribunal or before the Appeals committee.
Another issue is whether the court has adopted the judgment of the tribunal and whether this was done after the appeal had been lodged or before.
In the authority referred to, both issues now being raised by the advocate for the Respondent arose.
However the same were not dealt with as preliminary issues. The issue of jurisdiction was determined within the appeal whilst questions relating to the second issue were raised as food for thought without any specific conclusion.
I would overrule the preliminary objection and order that the appeal do proceed to hearing but that the advocate for the Respondent will be at liberty to argue the issues raised within the appeal. Those shall be the orders of this court.
Dated signed and delivered this 22nd day of July 2005.
H. M.OKWENGU
JUDGE