[2002] KEHC 911 (KLR)
The court found that the objection raised by the respondent did not amount to a preliminary objection on a point of law, as it required delving into the evidence by way of affidavit rather than addressing a pure point of law. The court adopted the principle from MUKISA BISCUIT MANUFACTURING LTD v WEST END...
Source-derived case information.
- Citation
- [2002] KEHC 911 (KLR)
- Parties
- Plaintiff: Motorways (K) Limited; Defendant: United Insurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1732 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- CA Ombija
- Legal Topics
- Preliminary Objection, Admissions, Order Xii Rule 6, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Motorways (K) Limited
Plaintiff
United Insurance Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondent constitutes a valid point of law under Order XII rule 6.
- 2 Whether there was an admission by the respondent sufficient to warrant the application under Order XII rule 6.
Ratio Decidendi
The court found that the objection raised by the respondent did not amount to a preliminary objection on a point of law, as it required delving into the evidence by way of affidavit rather than addressing a pure point of law. The court adopted the principle from MUKISA BISCUIT MANUFACTURING LTD v WEST END DISTRIBUTORS LTD that a preliminary objection must be based on a point of law arising from the pleadings and capable of disposing of the suit if upheld. Since the respondent's objection required examination of evidence and did not meet this threshold, it was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs to abide the outcome of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE 1732 OF 2001
MOTORWAYS (K) LIMITED……………………………. PLAINTIFF
VERSUS
UNITED INSURANCE CO. LTD. ……………...……. DEFENDANT
R U L I N G
At the hearing Mr. Ondabu for the respondent raised a preliminary objection on a point of law as regards the application dated 1st February 2000 by way of Notice of Motion, to the effect that Order XII rule 6 is inapplicable in the circumstances of the case.
According to Mr. Ondabu there is no admission on the respondent’s part. The letter dated 8/5/2000 which is exhibited as “DGM1” does not constitute on admission as the same was written on 14th November 2001 long before the suit was filed.
Mrs Kiarie for the applicant contended that the preliminary objection is misconceived. The application is brought under Order XII rule 6. There is admission of facts in paragraph 5, 6 and 7 of the supporting affidavit. It was Mrs. Kiarie’s further submission that in any event exhibit “DGM 2” is a further acknowledgement by the respondent to pay the outstanding amount of shs 867,729/- by way of instalments.
I have anxiously weighed the submissions of both counsels and in my view what is raised by Mr. Ondabu does not in law amount to preliminary objection on a point of law. In his submission Mr. Ondabu went into the evidence by way of affidavit and tried to argue the application under the guise of a preliminary objection.
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.
That was the observation of LAW J.A. in MUKISA BISCUIT MANUFACTURING LTD -vs- WEST END DISTRIBUTORS LTD 1969 EA 669 . I adopt it as the correct proposition of law and so hold.
For those reasons the preliminary objection is dismissed.
Costs to abide the outcome of the application. DATED and DELIVERED at Nairobi this 15TH day of March 2002.
N.R.O. OMBIJA
JUDGE
Mr. Ombanbe for Ondabu for defendant/respondent
Miss Okioga for Mrs Kiare for plaintiff/applicant