[2015] KEHC 3588 (KLR)
The court found that the preliminary objections raised by the defendant did not constitute pure points of law as required by precedent, specifically referencing the Mukhisa Biscuits case. The suit was found to have a substantive prayer and to disclose a cause of action. The court also determined that it had...
Source-derived case information.
- Citation
- [2015] KEHC 3588 (KLR)
- Parties
- Plaintiff: Purity Karabai Mabu (Suing as Legal representative of M'Nkaabu Mwereria alias Nkabu Mwereria (Deceased)); Defendant: Lymond Miriti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3 of 2014
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objections
- Outcome
- Both preliminary objections dismissed. Costs in the cause.
- Legal Topics
- Preliminary Objection, Jurisdiction, Locus Standi, Advocate Practising Certificate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Purity Karabai Mabu (Suing as Legal representative of M'Nkaabu Mwereria alias Nkabu Mwereria (Deceased))
Plaintiff
Lymond Miriti
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objections
Legal Issues
- 1 Whether the court has jurisdiction to hear and determine the suit.
- 2 Whether the plaintiff has locus standi to file the suit.
- 3 Whether the suit discloses a cause of action and substantive prayer.
Ratio Decidendi
The court found that the preliminary objections raised by the defendant did not constitute pure points of law as required by precedent, specifically referencing the Mukhisa Biscuits case. The suit was found to have a substantive prayer and to disclose a cause of action. The court also determined that it had jurisdiction over the matter as it related to land. Regarding the plaintiff's objection to the defendant's advocate's qualifications, the court reviewed evidence from the Law Society of Kenya and found that the advocate in question did hold a valid practising certificate for the relevant year. The court gave the benefit of doubt to the defendant's advocate in light of conflicting...
Court Disposition
Both preliminary objections dismissed. Costs in the cause.
Orders
- Both preliminary objections are dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 3 OF 2014
PURITY KARABAI MABU (Suing as Legal representative of M'Nkaabu Mwereria alias
NKABU MWERERIA (Deceased)......................................PLAINTIFF
VERSUS
LYMOND MIRITI.............................................................DEFENDANT
R U L I N G
This ruling concerns two preliminary objections.The first one, filed by the Defendant, is dated 6th day of February, 2014 and has the following grounds:
The court lacks jurisdiction hear and determine this suit.
The purported plaintiff lacks locus standi to file this suit.
The suit discloses no cause of action.
The suit discloses no substantive prayer.
The second application is dated 4th March, 2014 and is unsigned except for the “drawn and filed by” portion. It has the following grounds:-
THATthe defendant's advocate does not hold a practising certificate for this year and did not hold any last year.
THATthe defendant's advocates are comprised of a partnership of unqualified and or unlicensed persons and thus unfit to proffer any presentation in court.
Regarding the 1st application, and having perused the submissions made by the respective parties, including the authorities proffered by the parties, including the case of Mukhisa Biscuits Manufacturing Co. Ltd Versus West End Distributors Limited [1969] EA 697, I find that the application does not raise pure points of law. The suit has a substantive prayer and the objection relating to this objection invites arguments and is not a pure point of law. I also find that the suit discloses a cause of action. In these two grounds only, I have demonstrated that the grounds of objection do not amount to raising pure points of law. As this suit relates to land, I find that this court has jurisdiction to handle it. I do not need to say anything more. The application merits dismissal.
Regarding the 2nd application, I note that its supporting affidavit in paragraph 2 states as follows:
“2 THAT I have contacted the Law society of Kenya and established that the advocates and which is apparently a partnership of KIRIMI MBOGO, KENETH MURIUKI and HOSEA MUTEMBEI who purports to represent the defendants herein are not licensed to practice save for Mr. KENNETH MURIUKI. Annexed are Marked “KDI” is a copy of the print out from the LSK website.”
Annexture “KDI” shows practising status was inactive in 2014, but active in 2009, 2010, 2011, 2012 and 2013. It also shows that Mutembei Hosea Peter was inactive in 2014 but was active in 2012 and 2013. the supporting affidavit by David Kirimi was sworn on 4th March, 2014 and filed on 5th March, 2014, fairly early in the year 2014.
Our system is the Common Law System. Unlike the Civil System Judicial officers in Common Land Jurisdictions do not actively participate in investigations. However, a status report from the LSK website proffered to the Court shows the practising status of Mbogo Peter Kirimi, Number P. 105/3624/98 to be active during the years 2009, 2010, 2011, 2012, 2013, 2014 and 2015. I do not need to go into any details regarding Baithambu as the law society website lists advocate Mbogo as a partner in the firm of Mbogo and Muriuki advocates. Advocate Baithambu is not listed as a partner.
The authorities proffered by the plaintiffs are eminently good law in proper circumstances. In the present circumstances, I find that Mr Mbogo had a practising certificate in the year 2014. Regarding the diametrically opposed positions, apparently provided by the LSK website,I give the benefit of doubt to the defendant's advocate. In the circumstances, I am inclined to dismiss the 2nd application.
The end result is that I dismiss both applications. Costs shall be in the cause.
It is so ordered.
Delivered in Open |Court at Meru this 17th day of June, 2015 in the presence of:-
Cc. Daniel/Lilian
Muthomi h/b Kirimi for plaintiff/Applicant
Kariuki h/b for Mbogo for Defendant/Respondent
P. M. NJOROGE
JUDGE