[2024] KEHC 860 (KLR)
The court found that the preliminary objection was not based on valid legal provisions, as Order 5 Rule 9A of the Civil Procedure Code does not exist and Order 1 Rule 9 does not support the respondents' claim. The preliminary objection did not raise a pure point of law capable of disposing of the suit at a...
Source-derived case information.
- Citation
- [2024] KEHC 860 (KLR)
- Parties
- Applicant: Republic; Respondent: Chief Officer, Ministry of Water, Homa Bay County Government; Respondent: Homa Bay County Government; Applicant: Neeta Permanent Builders Co. Ltd
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E004 of 2023
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Preliminary Objection, Misjoinder and Nonjoinder, Civil Procedure Rules, Public Finance Management Act, Jurisdiction, Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chief Officer, Ministry of Water, Homa Bay County Government
Respondent
Homa Bay County Government
Respondent
Neeta Permanent Builders Co. Ltd
Applicant
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application offends the provisions of Order 1 Rule 9 of the Civil Procedure Rules.
- 2 Whether the application contravenes section 147 of the Public Finance Management Act.
- 3 Whether the preliminary objection raises pure points of law.
Ratio Decidendi
The court found that the preliminary objection was not based on valid legal provisions, as Order 5 Rule 9A of the Civil Procedure Code does not exist and Order 1 Rule 9 does not support the respondents' claim. The preliminary objection did not raise a pure point of law capable of disposing of the suit at a preliminary stage. Therefore, the preliminary objection lacked merit and was dismissed with costs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection dated 30th October 2023 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v Chief Officer, Ministry of Water, Homa Bay County Government & another; Neeta Permanent Builders Co. Ltd (Exparte Applicant) (Judicial Review E004 of 2023) [2024] KEHC 860 (KLR) (6 February 2024) (Ruling)
Neutral citation: [2024] KEHC 860 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Judicial Review E004 of 2023
KW Kiarie, J
February 6, 2024
Between
Republic
Applicant
and
Chief Officer, Ministry of Water, Homa Bay County Government
1st Respondent
Homa Bay County Government
2nd Respondent
and
Neeta Permanent Builders Co. Ltd
Exparte Applicant
Ruling
1. The respondents herein raised a preliminary objection dated the 30th day of October 2023 premised on the following grounds:a.That the application dated 6th April 2023 offends the provisions of Order 1 Rule 9 of Order 5 Rule 9A of the Civil Procedure Rules and ought to be dismissed with costs.b.The application dated 6th April 2023 contravenes the provisions of section 147 of the Public Finance Management Act.
2. The preliminary objection was opposed because it lacked merit.
3. A preliminary objection must be on a point of law and nothing more. This was clearly stated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696. On page 700, paragraphs D-F, Law JA, as he then was, stated:.... A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract, giving rise to the suit to refer the dispute to arbitration.I will, therefore, endeavour to find out if the issues raised herein are sustainable.
4. Order 1 Rule 9 of the Civil Procedure Rules provides:No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
5. Order 5 Rule 9A of the Civil Procedure Code is nonexistent.
6. The applicant based his Preliminary Objection on Order 1 Rule 9 of the Civil Procedure Rules, which does not support his claim. He equally relied on nonexistent legal provisions. The P.O., therefore, lacks merit and is dismissed with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 6TH DAY OF FEBRUARY 2024KIARIE WAWERU KIARIEJUDGE