[2003] KEHC 237 (KLR)
The court found that the preliminary objection raised by the respondent did not specify any clear point of law or cite any statutory provision, judicial precedent, or established rule of law that had been transgressed. The objection was therefore not substantive but rather technical in nature. The court reiterated...
Source-derived case information.
- Citation
- [2003] KEHC 237 (KLR)
- Parties
- Plaintiff: Lydia Njeri Karanja; Defendant: Janet Nyokabi Ndungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 85 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- AI Hayanga
- Legal Topics
- Preliminary Objection, Joinder of Parties, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Njeri Karanja
Plaintiff
Janet Nyokabi Ndungu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondent is based on a clear point of law.
- 2 Whether the application for leave to add parties is procedurally defective.
Ratio Decidendi
The court found that the preliminary objection raised by the respondent did not specify any clear point of law or cite any statutory provision, judicial precedent, or established rule of law that had been transgressed. The objection was therefore not substantive but rather technical in nature. The court reiterated that preliminary objections should only be raised on clear points of law and not on technicalities or mere defaults of form. As no law was cited or established to have been breached, the court dismissed the preliminary objection and allowed the application to proceed.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
13 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPLICATION NO. 85OF 2003
LYDIA NJERI KARANJA ….…………………….……..……..PLAINTIFF
V E R S U S
JANET NYOKABI NDUNGU ……………………………….DEFENDANT
R U L I N G
When the application for leave to add two more names came for hearing, Mr. Ngaruiya for Respondent raised a preliminary point saying the persons named in the application are not the appellants and that there should be a miscellaneous application filed by the Applicant. Mr. Mwangi for the Applicant stated that the description in the affidavit is clear and if anything amendment can cure the same.
The rule as to raising of preliminary points of law is now trite following the decision of Sir Charles Newbold and Law J.A. in the case of MUKISA BISCUIT MANUFACTURING COMPANY LIMITED vs. WESTEND DISTRIBUTORS COMPANY LIMITED 1969 EA 696when he said that such points ought to be raised only on agreed facts or on facts not in dispute and or on a clear point of law. Such objection should raise points of substance and not just some objection on technicality or mere default of form, but where it is made the objection must be clear and state what point of law is to be decided.
In this objection, I have not seen the point raised or the law in it. A point of law must be based on some law, either because it has been established judicially or it is a statutory provision or a rule of law. No law is stated here to me and I cannot therefore say if any law has at all been transgressed. Application dismissed with costs.
DATED at Nairobi this 23rd day of May 2003. A. I. HAYANGA JUDGE
Read to - Mr. Mwangi for Applicant Mr. Mundia for Respondent
A.I. HAYANGA JUDGE