[2021] KEELC 2428 (KLR)
The court held that the preliminary objection raised by the respondents did not meet the threshold of a pure point of law as established in Mukisa Biscuits. The objections regarding the form of the application (notice of motion versus application notice), the alleged requirement to serve the Attorney General, and...
Source-derived case information.
- Citation
- [2021] KEELC 2428 (KLR)
- Parties
- Applicant: Leo Investments Ltd; Respondent: Samson Oloolmaitai; Respondent: Ntoorian Koriata; Respondent: Stanley Koinet Koriata; Respondent: Sera Njoki Munge t/a Sanjomu Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 2 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Kullow
- Legal Topics
- Contempt of Court, Preliminary Objection, Service of Process, Procedure for Contempt Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leo Investments Ltd
Applicant
Samson Oloolmaitai
Respondent
Ntoorian Koriata
Respondent
Stanley Koinet Koriata
Respondent
Sera Njoki Munge t/a Sanjomu Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondents is valid in law.
- 2 Whether the contempt application was defective for failure to comply with procedural requirements.
- 3 Whether there was a duty to serve the Attorney General in the contempt proceedings.
Ratio Decidendi
The court held that the preliminary objection raised by the respondents did not meet the threshold of a pure point of law as established in Mukisa Biscuits. The objections regarding the form of the application (notice of motion versus application notice), the alleged requirement to serve the Attorney General, and the procedural requirements under the repealed Judicature Act or English Civil Procedure Rules were not valid grounds for a preliminary objection. The court found that there was no legal duty on the applicant to serve the Attorney General since no government department was involved, and the procedural form of the application did not amount to a fatal defect. Consequently, the...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 28/7/2020 is dismissed.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND OCURT
AT NAROK
ELC MISC NO. 2 OF 2020
LEO INVESTMENTS LTD...................................................................APPLICANT
-VERSUS-
SAMSON OLOOLMAITAI........................................................1ST RESPONDENT
NTOORIAN KORIATA..............................................................2ND RESPONDENT
STANLEY KOINET KORIATA................................................3RD RESPONDENT
SERA NJOKI MUNGE T/A SANJOMU AUCTIONEERS....4TH RESPONDENT
RULING
By a Notice of Motion dated 27/5/2020 the Applicant sought for orders that:-
1. Spent
2. That this honourable court do issue notices to show cause directed upon the 1st, 2nd and 3rd Landlord/Respondent to personally appear before the honourable court and explain as to why they should not be committed to Civil Jail for a period of 6 months for contempt of court.
3. That this honourable court be pleased to order that the 1st, 2nd and 3rd Landlords/Respondents herein be and are hereby committed to civil jail for contempt for such a period as this honourable court may deem fit and just for disobedience of the order of the court issued on the 26th day of March, 2020 by Hon. Chairman Mbichi Mboroki sitting at the Business Premises Rent Tribunal in Tribunal Case No. 60/2020 Nakuru.
4. That all necessary and consequential directions be given by the honourable court.
When the Application was served on the Respondents they raised a Preliminary Objection to the said Application on the grounds that the Application is defective as it offends section 5 (1) and further that the mandatory prescription of part 8 of the English Civil Procedure has not been met and there was no evidence of service of the application on the 1st, 2nd and 3rd respondents. The applicant further contends that no leave of the court was sought.
The Respondents in their submissions contend that the Notice of Motion was defective as the same is not premised on the correct procedure and there was personal service on the respondents. They further stated that the applicant had filed a notice of motion rather than an application notice.
The applicant in opposing the Preliminary Objection stated that the respondents continue to refer to Section 5 of the Judicature Act which Act was repealed and declined unconditional. They also stated contrary to the allegation by the respondents that they must be service of the applicant to be effected on the Attorney General or such other Government Departments of Public Offices as none of the alleged breaches of the court order was done by anyone of them.
I have considered the application before me and the submissions filed by parties herein and I must state that what constitutes the ingredients of Preliminary Objection is now settled by the court as held in the case of Mukisa Biscuits Manufacturers company limited –versus-Westend Distributors (1969)EA 696 in which the court held that the points raised must be on strictly point of law in which if the same is heard then it will be determined. In the instant case the Respondents Preliminary Objection is based on the legal ground that the application as framed does not confirm to the provisions of Rule 81 (1) (2) of the English Rules of Civil Procedure. The Respondents contend that the applicants have not sought leave to commence the contempt proceedings.
The respondents further argue that the applicants have not proved that the said application for contempt was served upon the respondents in person.
The respondents further stated that the Notice of Motion bringing the contempt application was not accompanied by statement of facts in which the grounds upon which the application was premised.
The Applicants in their submissions averred that the respondents Preliminary Objection make reference to Section 5 (1) of the contempt of court Act and the fact that the same was repeated by the contempt of court act does not revive the provisions of the Judicature Act. The applicant further stated that there was no duty by the applicant to warrant service on the honourable Attorney General as neither him nor any Government Departments was a party to proceedings.
On the issue of service of the orders of the court the applicant contends that the orders were properly served on the respondents and an affidavit of service duly filed.
Since I am dealing with the Preliminary Objection I don’t wish to delve into the merits of the application for contempt. Having perused the pleadings and the submissions filed I find that there was no duty on the applicant to serve the Attorney General with the Application for contempt and that the contention that the applicant ought to have filed an application notice and not a Notice of Motion cannot be said to be a Preliminary Objection on a point of law and in the circumstances, I find that the Preliminary Objection dated 28/7/2020 lacks merit and I therefore dismiss the same and direct that each party to bear its own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK ON THIS 23RD DAY OF JULY, 2021
MOHAMED N. KULLOW
JUDGE
23/7/2021
In the presence of:
CA:Chuma
Parties and advocates N/A