[2017] KEHC 3186 (KLR)
The court found that the notice of preliminary objection did not raise any issues of law but rather dealt with matters of fact. The only reference to law was the general assertion that the application was not supported by law, without any specific legal basis provided. The court reiterated that a valid preliminary...
Source-derived case information.
- Citation
- [2017] KEHC 3186 (KLR)
- Parties
- Applicant: Niru Gakenge; Respondent: Simon Mbogo Gakenge
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 423 of 2002
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
- Outcome
- preliminary objection dismissed
- Legal Topics
- Succession Proceedings, Revocation of Grant, Preliminary Objection, Points of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Niru Gakenge
Applicant
Simon Mbogo Gakenge
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
Legal Issues
- 1 Whether the preliminary objection raised by the respondent meets the threshold of a pure point of law.
- 2 Whether the preliminary objection can dispose of the application for revocation of grant.
Ratio Decidendi
The court found that the notice of preliminary objection did not raise any issues of law but rather dealt with matters of fact. The only reference to law was the general assertion that the application was not supported by law, without any specific legal basis provided. The court reiterated that a valid preliminary objection must be based on a pure point of law that, if upheld, would dispose of the suit or application. Since the objection failed to meet this standard, it was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 423 OF 2002
In the matter of the Estate of NYAGA KARUMA (Deceased)
NIRU GAKENGE………...................... APPLICANT/ADMINISTRATOR
V E R S U S
SIMON MBOGO GAKENGE............RESPONDENT/ADMINISTRATOR
R U L I N G
1. This is a ruling on a preliminary objection dated 23/02/2017 raised by the advocate for the respondent/ administrator against the hearing of the applicant's summons for revocation of grant.
2. The preliminary objection is said not to be supported by the law. It is also stated that the applicants have been filing numerous applications to delay the implementation of the grant.
3. The objection is opposed by the respondent on grounds that it raises only matters of facts and not matters of law as required in a preliminary objection.
4. I have perused the notice of objection and noted that it basically deals with matters of facts. The only thing that comes near the subject of law is that the “application is not supported by the law....”. The respondent does not give the details of the law.
5. I am in agreement with the respondent that the notice of preliminary objection does not raise any issues of law. “A preliminary objection must consist of a point of law which has been pleaded or which arises by a clear implication out of the pleadings, and which if argued may dispose of the suit” as was held in the case of KENYA UNION COMEERCAI FOD AND ALLIED WORKERS VS WATER RESOURCE MANAGMENT AUTHORITY & ANOTHER [2015] eKLR.
6. I find that the notice of objection does not pass the test of “a pure point of law” which if argued may dispose of the suit or of the application.
7. This being a succession cause, the court will not award costs of this application.
8. Each party to meet its own costs.
9. The objection stands dismissed.
10. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF OCTOBER, 2017.
F. MUCHEMI
J U D G E
In the presence of:-
Ms. Njeru for Ithiga for respondents
Mr. Kamunya for the Applicant/Administrator