[2005] KEHC 1436 (KLR)
The court found that the preliminary objection raised regarding the mode of commencement of the suit was a mere technicality without substance. The proceedings for exhumation of a body are special proceedings, and there is no prescribed form for approaching the court in such matters. The use of Chamber Summons is...
Source-derived case information.
- Citation
- [2005] KEHC 1436 (KLR)
- Parties
- Plaintiff: Pius Weyusia Wamalabe; Defendant: The Attorney General; Defendant: Uwe Meixner; Defendant: Genge Abdalla Mwyanje
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 527 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; matter to proceed to hearing
- Legal Topics
- Commencement of Proceedings, Chamber Summons, Preliminary Objection, Technicalities in Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Weyusia Wamalabe
Plaintiff
The Attorney General
Defendant
Uwe Meixner
Defendant
Genge Abdalla Mwyanje
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit was properly commenced by way of Chamber Summons in a miscellaneous civil application.
- 2 Whether the preliminary objection on the mode of commencement has merit.
Ratio Decidendi
The court found that the preliminary objection raised regarding the mode of commencement of the suit was a mere technicality without substance. The proceedings for exhumation of a body are special proceedings, and there is no prescribed form for approaching the court in such matters. The use of Chamber Summons is permissible, and the objection based on procedural formality does not warrant dismissal of the suit. The court emphasized that technicalities should not override substantive justice, and therefore, the matter should proceed to hearing.
Court Disposition
preliminary objection dismissed; matter to proceed to hearing
Orders
- The preliminary objection is dismissed.
- The matter shall proceed to hearing.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Civ Appli 527 of 2004
IN THE MATTER OF: EXHUMATION OF THE BODY OF
ANNA NAFULA UWE
PIUS WEYUSIA WAMALABE ……………………………………PLAINTIFF
VERSUS
THE ATTORNEY GENERAL. ……………….………….….1ST DEFENDANT
UWE MEIXNER …………………………………..……….…2ND DEFENDANT
GENGE ABDALLA MWAYANJE …………………..……..3RD DEFENDANT
R U L I N G
There is preliminary objection raised by Counsel for 2nd Respondent. This case is commenced by way of “Misc. civil Application” Headed “Chamber Summons”.
Mrs. Kasmani Moolraj advocate for 2nd defendant argues that suits can only be commenced by way of:
1. Plaint
2. Petition
3. Originating Summons
She argues that to commence suit order 4 (1) demands a Plaint or in such other manner as prescribed. Looking at Court of Appeal Civil Appeal No. 191 of 1999 Commissioner of VAT vs. Atul shah and others the court said and I quote “A Chamber Summons is an instrument “used to commence a civil action or special proceedings which may be properly transacted by judge or a judicial officer in his chambers or elsewhere in-contra distinction with such action or proceedings being transacted in open court.It is a means of acquiring jurisdiction over a matter in chambers. It is a pleading within the definition under Section 2 of Civil Procedure Act.
In this country the practice of transacting court business in Chambers as opposed to open court is no longer differentiated. All matters may be heard in open court (by the desire of the populace and litigants). Therefore chamber Summons may not only commence special proceedings in chambers but also in open court. The proceedings for exhumation of a body is special proceedings and it has not been shown that there is a prescribed form of approaching the court.
I do not find any merit in this Preliminary Objection. It is a mere technicality without substance.
I do not uphold the same and I order the matter to proceed to hearing.
Costs in the cause.
Delivered and dated at Mombasa on 27th day of September 2005.
J. KHAMINWA
J U D G E
27/9/05:
Khaminwa, J
Ms. Kasmani – present
Mr. Okello – present
M/s Kilonzo – not present
Ruling read.
KHAMINWA, J