[2017] KEELC 146 (KLR)
The court did not make a substantive determination on the preliminary objection as the defendant unconditionally withdrew it before hearing. The preliminary objection was therefore marked as withdrawn, and no costs were awarded. The court directed both parties to comply with Order 11 of the Civil Procedure Rules...
Source-derived case information.
- Citation
- [2017] KEELC 146 (KLR)
- Parties
- Plaintiff: Jamhuri Douglas Makinya; Defendant: Douglas Arithi Makinya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 117 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Preliminary Objection
- Outcome
- Preliminary objection withdrawn; no order as to costs; directions issued for compliance with Order 11 CPR.
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Law of Contract Act Section 3 3, Striking Out Suit, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamhuri Douglas Makinya
Plaintiff
Douglas Arithi Makinya
Defendant
Procedural Posture
Land and Property Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's suit is fatally defective for contravening section 3(3) of the Law of Contract Act.
- 2 Whether the suit should be struck out on a point of law raised by the defendant.
Ratio Decidendi
The court did not make a substantive determination on the preliminary objection as the defendant unconditionally withdrew it before hearing. The preliminary objection was therefore marked as withdrawn, and no costs were awarded. The court directed both parties to comply with Order 11 of the Civil Procedure Rules within specified timelines to facilitate the progression of the main suit.
Court Disposition
Preliminary objection withdrawn; no order as to costs; directions issued for compliance with Order 11 CPR.
Orders
- The preliminary objection dated 19th July, 2013 is marked as withdrawn.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT CHUKA
CHUKA ELC CASE NO 117 OF 2017
FORMRLY MERU ELC CASE NO. 44 OF 2009
JAMHURI DOUGLAS MAKINYA.....................PLAINTIFF
VERSUS
DOUGLAS ARITHI MAKINYA......................DEFENDANT
RULING
1. This ruling concerns a Preliminary Objection dated 19th July, 2013, filed by the defendant.
2. It states:
TAKE NOTICE that prior to the hearing of this suit the defendant shall raise and argue a preliminary point of law on the ground that
1. The plaintiff’s suit is fatally defective and bad in law as it contravenes the express provisions of section 3(3) of the Law of Contract Act Cap 23 Laws of Kenya.
REASONS WHEREOF the defendant prays that the plaintiff’s suit be struck out with costs to the defendant and the defendant to be allowed to prosecute his counterclaim.
DATED THIS 19TH DAY OF JULY, 2013
BASILIO GITONGA, MURIITHI AND ASSOCIATES
ADVOCATES FOR THE DEFENDANT
3. Although the parties had filed written submissions, on 2nd October, 2017, advocate Muriithi for the defendant wrote to the court intimating unconditional withdrawal of the Preliminary Objection.
4. The Preliminary Objection is marked as withdrawn.
5. No costs are ordered
6. The plaintiff to fully comply with order 11, CPR within 14 days of today and the defendant to do so within 14 days after receipt of the plaintiff’s compliance documents.
7. Mr. Muriithi, for the defendant to serve the orders issued today by the court upon the plaintiff’s advocate within 10 days of today.
8. Directions on 8. 11. 2017
9. It is so ordered.
Delivered in open court at Chuka this 2nd day of October, 2017 in the presence of:
CA: Ndegwa
Muriithi for the defendant
P.M. NJOROGE
JUDGE