[2015] KEHC 2544 (KLR)
The court found that the grounds advanced in support of the preliminary objection required arguments and did not constitute pure points of law. As such, the preliminary objection did not meet the threshold established in law for such objections. The court therefore dismissed the preliminary objection, allowing the...
Source-derived case information.
- Citation
- [2015] KEHC 2544 (KLR)
- Parties
- Applicant: Mugo and Gatungo Limited; Respondent: Fredrick M’Ithinji alias Fredrick Githinji
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 84 of 2015
- Procedural Posture
- Notice of Preliminary Objection / Ruling on Preliminary Objection Prior to Hearing Substantive Application
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Jurisdiction, Pure Point of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugo and Gatungo Limited
Applicant
Fredrick M’Ithinji alias Fredrick Githinji
Respondent
Procedural Posture
Notice of Preliminary Objection / Ruling on Preliminary Objection Prior to Hearing Substantive Application
Legal Issues
- 1 Whether the preliminary objection raises pure points of law that can be determined in limine.
- 2 Whether the court has jurisdiction to hear the application as challenged by the respondent.
Ratio Decidendi
The court found that the grounds advanced in support of the preliminary objection required arguments and did not constitute pure points of law. As such, the preliminary objection did not meet the threshold established in law for such objections. The court therefore dismissed the preliminary objection, allowing the substantive application to proceed to hearing.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
E & L 84 OF 2015
MUGO AND GATUNGO LIMITED ..................................APPLICANT
VERSUS
FREDRICK M’ITHINJI ALIAS FREDRICK GITHINJI .......RESPONDENT
RULING
This Notice of Preliminary Objection filed by the Plaintiff is dated 28th September 2015. It reads as follows:-
TAKE NOTICEthat at the hearing of the Notice of Motion dated 16th September, 2015 filed herein on behalf of the Applicant the Respondent will contend as a preliminary point of law, to be determined in limine , that the Applicant’s application is hopelessly misconceived, frivolous, totally devoid of merit and mala fides for the reason inter alia, that the Court lacks jurisdiction to hear this application.
WHICH OBJECTIONis grounded upon the record of proceedings and the Replying Affidavit filed on behalf of the Respondent and on such other or further grounds as may be adduced at the hearing hereof.
This Notice of Preliminary Objection has been heard before the application by the Plaintiff dated 16/09/2015 can be heard. This is right and fair as if this Preliminary Objection succeeds, there will be no need for hearing of the application.
Mr. Muthamia , for the Plaintiff supported the Preliminary Objection. Mr. Mutuma opposed it on grounds that it does not raise pure points of all.
I have carefully considered this matter. I find that all the grounds proffered by the respondent invite arguments and are therefore not pure points of law. For this reason, the Preliminary Objection is dismissed with costs being in the cause.
I do note that the Preliminary Objection is wrongly said to have been filed by the Firm of Waiganjo Wachira & Co for the Plaintiff/Respondent. The correct position is that this firm represents the Defendant/Respondent.
As already stated, the Preliminary Objection is dismissed.
Delivered in open Court at Meru this 30th day of September, 2015 in the presence of:-
CC: Lilian/Daniel
Mutuma holding brief for Mrs. Kibe for Plaintiff
Muthamia for Defendant.
P.M. NJOROGE
JUDGE