[2015] KEHC 7915 (KLR)
The court found that the defendant had filed grounds of opposition rather than a preliminary objection, and that grounds of opposition, unlike a preliminary objection, do not constitute an application capable of disposing of the plaintiff's application at this stage. The court held that the parties had conflated...
Source-derived case information.
- Citation
- [2015] KEHC 7915 (KLR)
- Parties
- Plaintiff: Justus Mugaa M'Mpwi; Defendant: Francis Kamuta M'Thiruaine
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 236 of 2012
- Procedural Posture
- Civil Suit / Ruling on Grounds of Opposition to Interlocutory Application
- Outcome
- Application to dismiss or strike out plaintiff's application denied; directions issued for hearing of the application by written submissions.
- Judges
- FM Njoroge
- Legal Topics
- Res Judicata, Grounds of Opposition, Preliminary Objection, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Mugaa M'Mpwi
Plaintiff
Francis Kamuta M'Thiruaine
Defendant
Procedural Posture
Civil Suit / Ruling on Grounds of Opposition to Interlocutory Application
Legal Issues
- 1 Whether the plaintiff's application dated 3rd November, 2014 is res judicata.
- 2 Whether the application is brought under the correct provisions of law.
- 3 Whether grounds of opposition can be treated as a preliminary objection.
Ratio Decidendi
The court found that the defendant had filed grounds of opposition rather than a preliminary objection, and that grounds of opposition, unlike a preliminary objection, do not constitute an application capable of disposing of the plaintiff's application at this stage. The court held that the parties had conflated grounds of opposition with a preliminary objection, and therefore, it was not proper to dismiss the plaintiff's application on that basis. The court directed that the plaintiff's application dated 3rd November, 2014 should be canvassed by way of written submissions, with timelines set for both parties to file and exchange their submissions, and for the matter to proceed accordingly.
Court Disposition
Application to dismiss or strike out plaintiff's application denied; directions issued for hearing of the application by written submissions.
Orders
- The plaintiff to file and exchange written submissions within 21 days of the date of the ruling.
- The defendant to file and exchange written submissions within 21 days after service by the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND COURT
CIVIL SUIT NO. 236 OF 2012
JUSTUS MUGAA M'MPWI.......................................................PLAINTIFF
VERSUS
FRANCIS KAMUTA M'THIRUAINE …..................................DEFENDANT
R U L I N G
The defendant in this suit filed grounds of opposition dated 25th November, 2014
in the following form:
“The Respondent/Defendant shall oppose the Plaintiff's/Applicant's application dated 3rd November, 2014 on the following grounds:-
The issues raised in the application are res judicata.
The application is brought under the wrong provisions of the law.
The application is frivolous, vexatious , scandalous and an abuse of the Court process.
The application seeks orders that were earlier denied by the Court vide the Ruling dated 18th February, 2014. REASONS WHEREFORE, the respondent shall be praying the Court to dismiss or strike out the Plaintiff's application with costs to the Defendant/Respondent”.
Having perused the Submissions proffered by the parties, the defendant argues that the orders sought by the plaintiff in his application dated 3rd November,2014 are similar to orders that were denied by the Court vide his earlier application dated 13th December, 2012 whose Ruling was delivered on 18th February, 20014. The Plaintiff on the other hand claims that the main prayer in the application dated 3rd November, 2014 is different as now he is seeking maintentance of status quo which order, if granted, will affect both the plaintiff and the defendant whereas the earlier application dated 13th December, 2012 sought Injunctive Orders against the defendant only.
I have carefully examined the Submissions the parties have proffered. Although they presume to be submitting on a Notice of Preliminary Objection, It is clear that the Defendant never filed a Preliminary Objection. What he filed were grounds of opposition which should be considered alongside other Submissions and averments when this Court hears and determines the plaintiff's application dated 3rd November, 2014. Grounds of opposition are just that. They are grounds of opposition. They do not amount to a Notice of Preliminary Objection on a point of law. Indeed grounds of opposition do not constitute an application in contradistinction to a Preliminary Objection on a point of law which constitutes an application. In the circumstances, I am unable to dismiss the plaintiffs application dated 3rd November, 2014 as it is clear that the parties conflated grounds of opposition with a Preliminary Objection. To dispose of the application expeditiously. I issue the following directions/ orders:
1. The application by the plaintiff dated 3rd November, 2014 is to be canvassed by way of Written Submissions with the Plaintiff filing and exchanging his Submissions within 21 days of the date of this Ruling.
2. The Defendant is to file and exchange his Written Submissions within 21 days after he is served by the plaintiff with his Submissions.
3. Upon closure of Submissions, the parties should obtain a mutually convenient date for directions from the registry.
4. Costs so far incurred shall be in the cause.
It is so ordered.
Delivered in Open Court at Meru this 3rd day of November, 2015 in the presence of:-
CC:
Daniel/Lilian
Rimita for Defendant/Respondent
plaintiff's Advocate Absent
P. M. NJOROGE
JUDGE