[2010] KEHC 1293 (KLR)
The court found that, based on the plaint and the submissions, there are sufficient allegations against the 2nd defendant to sustain a cause of action at this stage. The court emphasized that issues of mis-joinder or non-joinder are not fatal to the suit and that the preliminary objection was raised prematurely. The...
Source-derived case information.
- Citation
- [2010] KEHC 1293 (KLR)
- Parties
- Applicant: John Roki Waithaka; Defendant: Katram Limited; Defendant: Rahab Mukiama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 177 of 2010
- Procedural Posture
- Election Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Legal Topics
- Preliminary Objection, Joinder of Parties, Cause of Action, Injunctions, Pleadings, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Roki Waithaka
Applicant
Katram Limited
Defendant
Rahab Mukiama
Defendant
Procedural Posture
Election Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaint discloses a reasonable cause of action against the 2nd defendant.
- 2 Whether the 2nd defendant should be struck out of the proceedings at this stage.
- 3 Whether mis-joinder or non-joinder of parties is fatal to the suit.
Ratio Decidendi
The court found that, based on the plaint and the submissions, there are sufficient allegations against the 2nd defendant to sustain a cause of action at this stage. The court emphasized that issues of mis-joinder or non-joinder are not fatal to the suit and that the preliminary objection was raised prematurely. The court held that the preliminary objection could not dispose of the allegations against both defendants jointly and severally at this stage of the proceedings. Consequently, the preliminary objection was dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- The preliminary objection is dismissed.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Election Petition 177 of 2010
JOHN ROKI WAITHAKA………………………..PLAINTIFF/APPLICANT
VERSUS
KATRAM LIMITED………………...…………………..1ST DEFENDANT
RAHAB MUKIAMA……………………………………2ND DEFENDANT
RULING
The plaintiff brought this suit against both defendants in respect of a parcel of land known as LR.20530 inNairobi.Alongside the said suit he filed an application by way of Chamber Summons for injunction orders.Before the application was heard inter partes the learned counsel for the defendants filed a Notice of Preliminary Objection to the effect that the plaint does not disclose any reasonable cause of action against the 2nd defendant and that her name should be struck out of the pleadings.
Both learned counsel have filed submissions in respect of the Preliminary Objection.As at the time of filing the submissions the learned counsel for both defendants had filed defences in respect of both defendants.I have looked at the plaint, the defences and the submissions of both learned counsel in respect of the Preliminary Objection.Going by paragraphs 8,9,10,11,12 and 13 of the plaint it cannot be said that there is no cause of action against the 2nd defendant at this stage before the issues are drawn at an appropriate stage. In any case, no suit shall be defeated by reason of mis-joinder or non-joinder of parties.See Order I Rule 9 of the Civil Procedure Rules.
A Preliminary Objection consists of a point of law which has been pleaded or which arises by a clear implication out of pleadings and which if argued as a preliminary point may dispose the suit.
The preliminary point raised at this stage on behalf of the 2nd defendant in my view, cannot dispose off the allegations by the plaintiff against both defendants jointly and severally. I am of the view that, the same has been raised prematurely and is therefore dismissed with costs to the plaintiff.
Orders accordingly.
Dated, signed and delivered atNairobithis 29th day of September, 2010.
A.MBOGHOLI MSAGHA
JUDGE