[2002] KEHC 739 (KLR)
The court found that the preliminary objection raised by the Defendants was based on matters of fact rather than law, as it required the court to determine issues that should be resolved through the adduction of evidence. The objection did not meet the threshold for a preliminary objection as established in law,...
Source-derived case information.
- Citation
- [2002] KEHC 739 (KLR)
- Parties
- Plaintiff: Margaret Njeri Kamau; Defendant: Migwi Ngobia; Defendant: Julius Githigo Kamau
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 184 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Legal Topics
- Preliminary Objection, Stay of Proceedings, Land Control Board Consent, Party Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Njeri Kamau
Plaintiff
Migwi Ngobia
Defendant
Julius Githigo Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit should be stayed pending the determination of Nyeri HCC Appeal No. 37/99.
- 2 Whether the preliminary objection raised is on a point of law or fact.
- 3 Whether the Defendants have established a cause of action against the Plaintiff based on their claim through Francis Migwi Jesse.
Ratio Decidendi
The court found that the preliminary objection raised by the Defendants was based on matters of fact rather than law, as it required the court to determine issues that should be resolved through the adduction of evidence. The objection did not meet the threshold for a preliminary objection as established in law, since the facts were in dispute and the Defendants had not demonstrated that they were parties to the appeal or had a cause of action against the Plaintiff. Consequently, the objection was found to be misconceived and lacking in merit.
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- The preliminary objection is dismissed.
- Costs awarded to the Plaintiff.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI CIVIL CASE NO. 184 OF 2001
MARGARET NJERI KAMAU …………………….. PLAINTIFF VERSUS MIGWI NGOBIA JULIUS GITHIGO KAMAU ……………………….. DEFENDANT
RULING When this suit came up for hearing on 20/2/2002 counsel for the Defendants sought to answer the preliminary objection he first filed on 12/2/2002. Counsel submitted that the Defendants came to the suit land through one Francis Migwi Jesse who is a decree holder in Muranga PM CC NO. 187 of 1995. Secondly that the said decree holder was a Respondent in Nyeri High Court Civil Appeal No. 37 of 1999 lodged by the plaintiff. She urged the court that this suit should await the determination of the Appeal. The objection was opposed by the Plaintiff as being misplaced. Counsel for the Plaintiff contended that any proposed transaction between Francis Migwi Jesse is void for lack of the requisite Land Control Board Consent.
I have considered the application. If I understood the counsel for the Defendants properly the objection is that this suit be stayed pending the determination of Nyeri HCC Appeal No. 37/99. A suit will be stayed if one satisfies the conditions Act and in S.6 of the Civil Procedure Act.
The Defendants did not indicate whether they are parties to the Civil Appeal in this court. And if they are claiming the suit land under Francis Migwi Jesse they have to satisfy the court that they have a course of action against the Plaintiff. The preliminary objection is based on matters of fact. The law is that a preliminary point taken should be on matters of law.A preliminary objection cannot be sustained if the facts are in dispute or if what is sought is the exercise of the court’s discretion.
This court is being asked to determine issues that technically should be determined by the adduction of evidence. I find the objection lacking in merit. It is misconceived and the same is dismissed with costs to the Plaintiff.
Dated this 21st day of February 2002. J.K. MITEY JUDGE