[2016] KEHC 6767 (KLR)
The court accepted the defendants' request to withdraw the preliminary objection that the suit was res judicata, as there was no opposition from the plaintiff. The withdrawal was marked as settled, and the court ordered the parties to comply with relevant procedural orders to enable the suit to proceed on its...
Source-derived case information.
- Citation
- [2016] KEHC 6767 (KLR)
- Parties
- Plaintiff: Joseph Muthuri Ikunyua; Defendant: James Mwiteri Kinyua & 3 Others
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 135 of 2009
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- Preliminary objection withdrawn and settled; suit to proceed on merits.
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Res Judicata, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muthuri Ikunyua
Plaintiff
James Mwiteri Kinyua & 3 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata due to Meru H.C Succession Cause No 339 of 2005.
- 2 Whether the preliminary objection should be withdrawn and the suit proceed on its merits.
Ratio Decidendi
The court accepted the defendants' request to withdraw the preliminary objection that the suit was res judicata, as there was no opposition from the plaintiff. The withdrawal was marked as settled, and the court ordered the parties to comply with relevant procedural orders to enable the suit to proceed on its merits. The plaintiff was awarded costs for the day, to be paid before the next mention of the matter. The court's decision was based on the procedural right of a party to withdraw an objection and the absence of contest from the opposing party.
Court Disposition
Preliminary objection withdrawn and settled; suit to proceed on merits.
Orders
- The defendants' preliminary objection dated 17/4/2015 is marked as withdrawn and settled.
- The plaintiff is awarded today's costs assessed at Kshs. 1000 to be paid before the matter is next mentioned in court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO 135 OF 2009 (OS)
JOSEPH MUTHURI IKUNYUA …...................................................PLAINTIFF
VERSUS
JAMES MWITERI KINYUA & 3 OTHERS...................................DEFENDANT
R U L I N G
This Preliminary Objection is dated 17th April, 2015.
It states:-
“TAKE NOTICE:- that Counsel for the Defendant shall prior to the hearing of this suit raise and urge the following Preliminary Objection on a point of law.
THATthe entire suit is fatally defective and bad in Law for being res judicata MERU H.C SUCCESSION CAUSE NO 339 of 2005.
REASONS WHEREFORE:- The defendants pray that this suit be dismissed with costs”.
On 17/02/2015 when the Preliminary Objection was to be heard, Mr. Muriithi asked the Court to have it marked withdrawn and settled so that the suit could be heard on its merits. There was no objection to the withdrawal.
It is ordered as follows:-
The Defendants Preliminary Objection dated 17/4/2015 is marked as withdrawn and settled.
The Plaintiff is awarded todays costs assessed at Kshs. 1000/= to be paid before the matter is next mentioned in Court.
Parties to fully comply with orders 3, 7, and 11, CPR , as the case may be within the next 60 days
Directions on 17/5/2016. `
Delivered in open Court at Meru this 17th day of February, 2016 in the presence of:
CC: Daniel/Lilian
Joseph Muthuri for Plaintiff
Muriithi for Defendants
P.M NJOROGE
JUDGE