[2011] KEHC 2028 (KLR)
The court found that the preliminary objection raised by the respondent was not based on a pure point of law but rather on matters that required the court to ascertain facts, specifically regarding the outcome of HC Misc. Civil Application No. 34 of 2009 (JR). The annexed proceedings showed that the motion in that...
Source-derived case information.
- Citation
- [2011] KEHC 2028 (KLR)
- Parties
- Applicant: Republic; Respondent: Ngondi Njeru; Respondent: Gachoka Land Disputes Tribunal; Respondent: Attorney General; Applicant: Daudi Ngari Njiru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 68 of 2010
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Preliminary Objection, Jurisdiction, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ngondi Njeru
Respondent
Gachoka Land Disputes Tribunal
Respondent
Attorney General
Respondent
Daudi Ngari Njiru
Applicant
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised is properly founded in law and can dispose of the suit at this stage.
- 2 Whether the objection is based on pure points of law or requires ascertainment of facts.
Ratio Decidendi
The court found that the preliminary objection raised by the respondent was not based on a pure point of law but rather on matters that required the court to ascertain facts, specifically regarding the outcome of HC Misc. Civil Application No. 34 of 2009 (JR). The annexed proceedings showed that the motion in that case was withdrawn, not determined on the merits. As such, the objection could not be sustained as a preliminary point of law. The court emphasized that preliminary objections must be confined to clear points of law and not matters requiring factual investigation or judicial discretion. Consequently, the preliminary objection was dismissed with costs to the applicant.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
JUDICIAL REVIEW NO. 68 OF 2010
REPUBLIC.…………………………………..….………........………….……APPLICANT
VERSUS
NGONDI NJERU………………………..………......………...…….….1ST RESPONDENT
GACHOKALANDDISPUTES TRIBUNAL …...........…..…....……….2ND RESPONDENT
ATTONEY GENERAL……………………….........………..……..……3RD RESPONDENT
DAUDI NGARI NJIRU…………………….............….…….…….EXPARTE APPLICANT
R U L I N G
In MUKISA BISCUIT MANUFACTURING CO. LIMITED VS WEST END DISTRIBUTORS LIMITED [1969] EA 696 at page700LAW, JA observed as follows:
“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 a contract giving rise to the suit to refer the dispute to arbitration.”
Such a preliminary point is argued on the assumption that all the facts pleaded by the other side are correct. If the facts are to be ascertained or if what is sought is the exercise of judicial discretion then the objection cannot be properly raised.
In the instance case, the matters contained in the notice of preliminary objection are basically evidence which should have been contained in a replying affidavit. Secondly, both the exparte Applicant and the 1st Respondent appear to be saying that the award of the Lands Dispute Tribunal in regard to BLOCK 109 was quashed by the order of the court in HC MISC. CIVIL APPLICATION NO. 34 OF 2009 (JR) at Embu. Yet, the proceedings annexed to the application show that the motion was withdrawn. In other words, the court will have to ascertain what it is that the court decided in the case and therefore an objection cannot be properly founded on the annexed proceedings.
In short, the objection is not sustained and is dismissed with costs.
DATED, DELIVERED AND SIGNED AT EMBU THIS 18th DAY OF JULY 2011.
A.O. MUCHELULE
JUDGE