[2021] KEHC 2257 (KLR)
The court found that the plaintiff's preliminary objection was not based on pure points of law but would require the support of facts and evidence. Therefore, it did not meet the threshold of a preliminary objection as established in law. The objection was thus dismissed for lacking merit.
Source-derived case information.
- Citation
- [2021] KEHC 2257 (KLR)
- Parties
- Plaintiff: Rosemary Wanjiru Kungu; Defendant: Peter William Kinyanjui; Respondent: Effort Movers Limited; Applicant: Martin Nguku Karanja t/a Country Muthiga Inn
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 79 of 2017
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JK Sergon
- Legal Topics
- Preliminary Objection, Joinder of Parties, Pure Points of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wanjiru Kungu
Plaintiff
Peter William Kinyanjui
Defendant
Effort Movers Limited
Respondent
Martin Nguku Karanja t/a Country Muthiga Inn
Applicant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the plaintiff qualifies as a pure point of law.
- 2 Whether the omission to enjoin Icon Auctioneers as respondents renders the objectors' application incompetent.
Ratio Decidendi
The court found that the plaintiff's preliminary objection was not based on pure points of law but would require the support of facts and evidence. Therefore, it did not meet the threshold of a preliminary objection as established in law. The objection was thus dismissed for lacking merit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 26th July 2021 is dismissed with costs abiding the outcome of the applications dated 18th June 2021 and 24th June 2021.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 79 OF 2017
ROSEMARY WANJIRU KUNGU............................................................PLAINTIFF/RESPONDENT
VERSUS
PETER WILLIAM KINYANJUI..................................................................................... DEFENDANT
AND
EFFORT MOVERS LIMITED.....................................................................................1ST OBJECTOR
MARTIN NGUKU KARANJA T/A COUNTRY MUTHIGA INN...2ND OBJECTOR/APPLICANT
RULING
1. The plaintiff filed the preliminary objection dated 26th July 2021arguing that the application filed by the objectors cannot stand if Icon Auctioneers were not enjoined as respondents.
2. It is argued that the application will be rendered nugatory bytheir omission. The respondents/objectors opposed the preliminary objection arguing that the same does not qualify to be regarded as such. It is pointed out that the preliminary will require the support of facts since it is not based on pure points of law.
3. Having considered the rival arguments, I am persuaded by thearguments of the objectors/respondents, that the plaintiff’s preliminary is not based on pure points of law hence it cannot qualify to be regarded as a preliminary objection. It is apparent that the same will require to be supported by facts and evidence.
4. In the end, I find no merit in the preliminary objection. The sameis dismissed with costs abiding the outcome of the two applications one dated 18th June 2021 and the other dated 24th June 2021.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021
…….….…………….
J. K. SERGON
JUDGE
In the presence of:
…………………………………. for the Plaintiff/Respondent
…………………………………. for the defendant