[2003] KEHC 508 (KLR)
The court held that Order 50 rule 16(1) does not expressly include Notices of Preliminary Objection, and that such notices fall under Order 47 rule 2, which governs the service of documents not otherwise specifically provided for. Since Order 47 rule 2 does not set a specific time limit for service, the objection to...
Source-derived case information.
- Citation
- [2003] KEHC 508 (KLR)
- Parties
- Plaintiff: Nancy Wanjiku Ng’anga; Defendant: The Standard Ltd; Defendant: Betting Control & Licensing Board
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 44 of 1999
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection to short service dismissed
- Legal Topics
- Preliminary Objection, Service of Documents, Interpretation of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wanjiku Ng’anga
Plaintiff
The Standard Ltd
Defendant
Betting Control & Licensing Board
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Notice of Preliminary Objection was properly served in accordance with the Civil Procedure Rules.
- 2 Whether the objection to the short service of the Notice of Preliminary Objection should be upheld.
Ratio Decidendi
The court held that Order 50 rule 16(1) does not expressly include Notices of Preliminary Objection, and that such notices fall under Order 47 rule 2, which governs the service of documents not otherwise specifically provided for. Since Order 47 rule 2 does not set a specific time limit for service, the objection to the short service of the Notice of Preliminary Objection could not be sustained. The court therefore dismissed the objection raised by Mr. Gichana.
Court Disposition
preliminary objection to short service dismissed
Orders
- The objection raised by Mr. Gichana is dismissed.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASACIVIL SUIT NO. 44 OF 1999
NANCY WANJIKU NG’ANGA ………………………….…. PLAINTIFF - VERSUS - 1. THE STANDARD LTD……………………………. 1ST DEFENDANT 2. BETTING CONTROL & LICENSING BOARD ….2ND DEFENDANT
R U L I N G
I have considered the point raised by Mr. Gichana as regards the Notice of Preliminary objection which he says was served upon him just a day before the hearing as opposed to 3 clear days as provided for under order 50 rule 16 (1) which Provides as follows:
“16 (1) Any respondent who wishes to oppose any motion or other application shall file and serve on the applicant a replying affidavit or a statement of grounds of opposition if any, not less than three clear days before the date of hearing”
Underlining mine)
The Rule does not include Notice of Preliminary objection. However order 47 rule 2 does provide for the mode of service of Notices and in my humble interpretation a Notice of Preliminary objection which is not separately provided for would fall under this rule. Order 47 rule 2 provides: “2. All orders notices and documents required by these Rules to be given to or served on any person shall save where other provision is made, be served in the manner provided for the service of Summons” The rule does not set a time limit as to how many days prior to the hearing the documents falling under this rule are to be served. And with this in mind, I find no reason to uphold the objection raised by Mr. Gichana and the same is hereby dismissed.
Dated and Delivered at Mombasa this 14th day of February, 2003. P.M. TUTUI COMMISSIONER OF ASSIZE