[2017] KEHC 589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL SUIT NO. 23 OF 2001 (O.S)

IN THE MATTER OF LAND PARCEL NO. KERICHO /KIPCHIMCHIM/1003

AND

IN THE MATTER OF SECTION 38 OF THE LIMITATION OF ACTIONS ACT (CAP 22)

BETWEEN

KIMETET ARAP MIBEI......................PLAINTIFF/RESPONDENT

VERSUS

PHILOMENA CHEBOEN..................DEFENDANT/RESPONDENT

RULING

This ruling is in respect of the Preliminary Objection dated 29th May 2017 raised by the plaintiff/ Respondent in which he raised the following points:

1. That the notice of Appointment by Ochang & Co Advocates sis fatally defective as the firm of Motanya & Co Advocates are still on record for the Defendant/ Applicant and the consent and/or concurrence of the counsels already on record has neither been sought nor obtained.

2. That the Defendant/ Applicant’s application dated 13th April 2017 is an abuse of the court process and tailored towards avoiding the intended dismissal for want of prosecution by this Hounourable court of her application to set aside this court’s judgment and Decree dated 8th September 2004.

3. That the Defendant/ Applicant is not vigilant litigant and she is guilty of laches

The parties agreed to dispose of the preliminary objection by way of written submissions.

In his submissions counsel for the plaintiff/respondent gave a background of the case. In 2001 the plaintiff filed suit against the defendant by way of Originating Summons seeking to be declared as the owner of land parcel number KERICHO/KIPCHIMCHIM/1003 by virtue of adverse possession. He states that despite being served, the defendant neither entered appearance nor filed a Replying Affidavit. On 29th October 2003, the court entered judgment for the plaintiff as prayed in the O.S together with costs. The plaintiff then proceeded to have the suit land registered in his name and a title deed was duly issued. Almost a year later on 8th September 2004, the defendant filed an application to set aside the ex-parte judgment but for some reason the application was not heard until five years later on 28th May 2009 when it was withdrawn with costs to the plaintiff.

In its effort to deal with case backlog, the court erroneously issued a notice for dismissal of the suit for want of prosecution under order 17 rule 2 of the Civil Procedure Rules on 16th July 2014. Counsel for the defendant asked for 30 days to reconstruct his file which had been destroyed in a fire. When the matter came up for mention on 30th October 2014, nothing had been done and the suit was dismissed for want of prosecution. Three years later in April 2017 the defendant through the firm of Ochang Ajigo & Co Advocates field an application to inter alia set aside the ex-parte judgment together with the decree entered herein. Before the application could be heard, the plaintiff raised the Preliminary objection which is the subject matter of this Ruling.

The main issues for determination are as follows:

1. Whether the Preliminary objection is merited

2. Whether the preliminary objection should be sustained

The definition of Preliminary objection was succinctly captured in the celebrated case ofMukisa Biscuit Manufacturing Limited V West End Distributors 1969 EA 696 at page 700where Law J.A stated as follows:

“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”

Sir Charles Newbold added elaborated further that:

“ A preliminary point is in the nature of what used to be a demurrer. It raises a pure point or law which is argued on the assumption that all the facts pleaded by the other side are correct. It can’t be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

In the instant case the main preliminary point raised is that the suit is an abuse of the court process as it is a replica of the applicant’s application dated 8th September 2004 to set aside the ex parte judgment which was withdrawn in 2009. The dismissal of the suit for want of prosecution further sealed the defendant’s fate. The suit therefore stands dismissed and there is no basis for re-opening the case as this would amount to the court sitting on appeal against its own decision.

The point as to whether the application is an abuse of the court process is strictly speaking not a pure point of law. In order for the court to make a determination on it, there is need to evaluate the proceedings, all the evidence placed on record as well as the conduct of the parties. The court will then have to exercise its discretion on whether to allow the application or not.

I am therefore not satisfied that the preliminary objection has merit and the same is dismissed.

DATED SIGNED AND DELIVERED AT KERICHO THIS 10TH DAY OF OCTOBER 2017

J. M ONYANGO

JUDGE

In the presence of:

Mr. Onesmus Langat for the Plaintiff/Respondent

Mr. Terer for Mr. Ochang for the Defendant/Applicant

Court Assistant: Rotich