[2001] KEHC 782 (KLR)
The court found that the preliminary objection was not necessary as the substantive issues in the application had not been exhaustively canvassed. The disagreement on interest raised by the respondent indicated that the decree may not have been ready for extraction, and this issue had not been satisfactorily...
Source-derived case information.
- Citation
- [2001] KEHC 782 (KLR)
- Parties
- Appellant: Kenya Reinsurance Corporation; Respondent: John Muriuki Kibuchi & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5154 of 1987
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Decree Extraction, Interest Award, Right of Audience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Reinsurance Corporation
Appellant
John Muriuki Kibuchi & Another
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether there is a legal basis for an application to set aside a decree under the Civil Procedure Rules.
- 2 Whether the decree was properly extracted given the dispute on interest between the parties.
- 3 Whether the court has jurisdiction to entertain the application under Section 3A of the Civil Procedure Act.
Ratio Decidendi
The court found that the preliminary objection was not necessary as the substantive issues in the application had not been exhaustively canvassed. The disagreement on interest raised by the respondent indicated that the decree may not have been ready for extraction, and this issue had not been satisfactorily addressed by the applicant. The court held that the matter could not be adequately settled at the preliminary stage and that parties should be given an opportunity to be heard on the merits of the application. The court exercised its inherent jurisdiction under Section 3A of the Civil Procedure Act to dismiss the preliminary objection and allow the application to proceed to a hearing...
Court Disposition
preliminary objection dismissed
Orders
- The notice of preliminary objection is dismissed with costs.
- Parties to be heard on the merits of the application dated 20th November, 2000.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 5154 OF 1987
KENYA REINSURANCE CORPORATION .....................APPELLANT VERSUS JOHN MURIUKI KIBUCHI & ANOTHER .................... RESPONDENTS
R U L I N G
When the application filed herein on 22/11/2000 came up for hearing on 18th January, 2001, counsel for the respondent raised a preliminary objection over which notice had been filed on 8/12/2000.
According to his submission, though the application was to set aside a decree, there was no provision in law under which such application could be made. That if there was any quarrel with it, the only available remedy was an application for rTehvaite w.applicant had no right of audience and that Order XX1 rule 22 of the Civil Procedure Rules was inapplicable in this matter
Counsel prayed for the dismissal of the application for being fatally incompetent. Counsel for the respondent submitted that the decree was not extracted properly as parties had not agreed on the issue of interest which fact was not brought to the notice of the Deputy Registrar when the decree was being extracted.
That under Order 20 (7) this matter should have been referred to the same Deputy Registrar for Settlement as to terms of interest. That the court has interest powers to entertain an application of this nature - hence the application before the court. Having heard parties submit on this notice of a preliminary objection, I am not quite sure such notice was necessary as the issues pertaining to the dispute in the application dated 20th November, 2000 and filed in court on 22nd November, 20000 don't seem to have been exhausitively canvaTshsee d.issue of the disagreement on interest between the parties has been raised by counsel for the respondent in which case she is saying the decree was not ready for extraction. This issue has not been satisfactorily answered by the applicant in this notice of preliminary objection.
In my views this matter cannot be adequately settled at this stage and that parties should be given a chance to be heard on the merits of the application dated 20th November, 2000 since the court has interest powers to entertain it under Section 3(A) of the Civil Procedure Act. The notice of preliminary objection be and is hereby dismissed with costs.
Delivered and dated this 29th day of January, 2001.
D. K. S. AGANYANYA
JUDGE