[2003] KEHC 686 (KLR)
The court held that the preliminary objection could not be sustained because the facts relevant to the existence and breach of contract were disputed and not agreed upon by the parties. A preliminary objection must be based on pure points of law and not on facts that require ascertainment through evidence. Since the...
Source-derived case information.
- Citation
- [2003] KEHC 686 (KLR)
- Parties
- Plaintiff: Kenya National Trading Corporation; Defendant: Bawazir & Company (1993) Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 258 of 1997
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Cause of Action, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Trading Corporation
Plaintiff
Bawazir & Company (1993) Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the facts pleaded in paragraph 3a of the amended plaint disclose a cause of action based on contract.
- 2 Whether a preliminary objection can be sustained where facts are disputed and not agreed upon.
Ratio Decidendi
The court held that the preliminary objection could not be sustained because the facts relevant to the existence and breach of contract were disputed and not agreed upon by the parties. A preliminary objection must be based on pure points of law and not on facts that require ascertainment through evidence. Since the parties had not agreed on when the contract was breached, the issue of when the cause of action arose could not be determined at this stage. Accordingly, the preliminary objection was disallowed with costs.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is disallowed with costs to the respondent.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICIVIL CASE NO. 258 OF 1997
KENYA NATIONAL TRADING CORPORATION ..…..……..PLAINTIFF V E R S U S BAWAZIR & COMMPANY (1993) LTD. ……………………DEFENDANT
R U L I N G
I am told by parties herein that paragraph 3a of the plaint as amended says the cause of action arose in these words ; -
“In or about 1990, the Plaintiff in the course of its business, approached the Defendant to source for rice to import and which the Defendant agreed and obtained a quotation from Rice Import Corporation of Pakistan, the particulars whereof are well within the Defendant’s knowledge.”
The matter seems to be a question of interpretation and it is whether those words constitute a contract or a cause of action. I do know, that in a case based on contract, there must be contract made and a breach of it, that is when there is a cause of action in a breach of contract. Act Cap 22 provides for time limit to run from when the cause of action arises not when the contract is made. Here parties have argued exclusively and at length on when the contract was made and not when cause of action arose. Nobody has told me when the contract was breached. Hence the issue of cause of action has not been even touched.
However, whichever point is argued here, it is evident that there are no facts agreed. Preliminary point cannot be argued on points of fact disputed by parties and not agreed. This preliminary objection cannot succeed and I disallow it with cost.
DATED this 6th day of June 2003 A.I. HAYANGA
JUDGE