[2009] KEHC 3017 (KLR)
The court found that the preliminary objection was premature as it was raised before discovery and before pleadings were closed. There was insufficient clarity at this stage as to whether the Plaintiff was suing in her own right or as an administrator of her late husband’s estate. The court held that the issue of...
Source-derived case information.
- Citation
- [2009] KEHC 3017 (KLR)
- Parties
- Plaintiff: Nadha Mohamed Ali; Defendant: Boniface Musyoka Munavu; Defendant: Board of Trustees, National Social Security Fund
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 79 of 2009
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Before Discovery
- Outcome
- preliminary objection dismissed with costs to the Plaintiff
- Judges
- JL Osiemo
- Legal Topics
- Capacity to Sue, Preliminary Objection, Ownership of Land, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nadha Mohamed Ali
Plaintiff
Boniface Musyoka Munavu
Defendant
Board of Trustees, National Social Security Fund
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Before Discovery
Legal Issues
- 1 Whether the Plaintiff has legal capacity to institute the suit regarding LR No NAIROBI/BLOCK 21190/187.
- 2 Whether the preliminary objection on capacity is properly raised at this stage before discovery.
Ratio Decidendi
The court found that the preliminary objection was premature as it was raised before discovery and before pleadings were closed. There was insufficient clarity at this stage as to whether the Plaintiff was suing in her own right or as an administrator of her late husband’s estate. The court held that the issue of capacity required further factual clarification, which could only be established after discovery. Therefore, the preliminary objection was dismissed with costs to the Plaintiff.
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
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Environment & Land Case 79 of 2009
NADHA MOHAMED ALI…………………………..PLAINTIFF/APPLICANT
VERSUS
BONIFACE MUSYOKA MUNAVU……………………….. …………………..1ST DEFENDANT/RESPONDENT
BOARD OF TRUSTEES, NATIONAL SOCOCIAL SECURITY FUND……2ND DEFENDANT/RESPONDENT
R U L I N G
The Plaintiff filed this suit against the Defendant seeking orders for a permanent injunction to restrain the 1st Defendant by himself in servants, agents and/or employees from trespassing constructing or in any way whatsoever interfering with the Plaintiff’s possession and/or ownership of LR No NAIROBI/BLOCK 21190/187. The Plaintiff also sought costs of the suit.
The Defendant on being served with summons raised a preliminary objection to the Plaintiff’s suit on the ground that the Plaintiff lacks legal capacity to bring this suit relying on paragraph 6 of the Plaint which states
“6” Following the death of my husband idle Ali Mohamed the 2nd Defendant confirmed the Plaintiff as the registered owner of the suit premises. “
Mr. Jaoko submitted that the Plaintiff having not obtained Letters of Administration to administer the estate of her late husband she had no capacity to file this suit.
Mr. Amendi Counsel appearing for the Plaintiffs submitted that the preliminary objection had no merit as the Plaintiff had brought this suit on her own behalf and all the instruments in respect of the suit premises are in her own name.
The Court is at a loss as to who of the two is telling the truth. The preliminary objection at this stage is premature as the same is brought before discovery. The same ought to have been raised after the pleading have been closed and documents in which the parties intend to rely to prove ownership discovered.
For the above reasons the preliminary objection is dismissed with costs.
Dated and delivered at Nairobi this 10th day of June 2009.
J. L. A. OSIEMO
JUDGE