[2018] KEELC 3288 (KLR)
The court found that the issues raised in the preliminary objection, including compliance with the Mental Health Act and the plaintiff's locus standi, could not be determined without oral evidence. As such, the objection was not based on a pure point of law but required factual determination. Therefore, the...
Source-derived case information.
- Citation
- [2018] KEELC 3288 (KLR)
- Parties
- Plaintiff: Njagi Kanampiu (suing as next friend Joseph Kthenya Kanampiu); Defendant: Kellen Nchunguni Riungu & 2 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 265 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Locus Standi, Mental Health Act Procedure, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njagi Kanampiu (suing as next friend Joseph Kthenya Kanampiu)
Plaintiff
Kellen Nchunguni Riungu & 2 Others
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit offends the mandatory provisions of section 26 and 27 of the Mental Health Act (Cap 248).
- 2 Whether the suit is scandalous, frivolous or vexatious.
- 3 Whether the plaintiff has locus standi to institute the suit.
Ratio Decidendi
The court found that the issues raised in the preliminary objection, including compliance with the Mental Health Act and the plaintiff's locus standi, could not be determined without oral evidence. As such, the objection was not based on a pure point of law but required factual determination. Therefore, the preliminary objection was dismissed, and the suit was ordered to proceed to hearing.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 23rd April, 2018 is dismissed.
- No costs are awarded.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 265 OF 2017
FORMERLY MERU ELC. 79 OF 2014
NJAGI KANAMPIU
(SUING AS NEXT FRIEND JOSEPH KTHENYA KANAMPIU)....PLAINTIFF/APPLICANT
VERSUS
KELLEN NCHUNGUNI RIUNGU & 2 OTHERS................................................DEFENDANTS
RULING
1. The ruling concerns a Notice of Preliminary Objection which is in the following form:
NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the Defendants shall at the hearing suit filed by plaint dated 02. 06. 2011 raise a preliminary objection and seek to have the same struck out with costs on the grounds:-
1. That the suit offends the mandatory provisions of section 26 and 27 of the Mental Health Act (Cap 248 of the Laws of Kenya) and as such, the same is a non-starter, incurably bad in law and an abuse of court process.
2. That the suit is scandalous, frivolous or vexatious.
3. That the suit is incompetent as the plaintiff lacks the necessary locus standi to institute this suit and is therefore incapable of sustaining the same against the defendant.
Dated at Nyeri this 23rd day of April, 2018
MUCHIRI WA GATHONI & COMPANY
ADVOCATES FOR DEFENDANTS
2. Off hand, it is clear that the preliminary Objection raises issues which can only be canvassed through oral evidence. It is, therefore, not predicated upon a pure point of law.
3. In the circumstances, the Preliminary Objection dated 23rd April, 2018 is hereby dismissed.
4. No costs are awarded.
5. The court orders that the suit be heard on 19th June, 2018.
Delivered in open court at Chuka this 15th day of May, 2018 in the presence of:
CA: Ndegwa
Majau for 1st, 2nd and 3rd Defendants
Njagi Kanampiu – Plaintiff
Joseph Kathenya Kanampiu – Intended 4th Defendant
P. M. NJOROGE
JUDGE