[2015] KEHC 1258 (KLR)
The court found that the grounds raised in the notice of preliminary objection did not constitute pure points of law, as they required the court to consider factual matters and the necessity for proof of assertions. The court emphasized that a preliminary objection should be based solely on points of law that do not...
Source-derived case information.
- Citation
- [2015] KEHC 1258 (KLR)
- Parties
- Plaintiff: Samson Kubai; Plaintiff: Stanley Mwarii; Defendant: Marion Gacheri (being the legal representative of the estate of M'Ibuuri M'Ikandi)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 52 of 2014
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Locus Standi, Preliminary Objection, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Kubai
Plaintiff
Stanley Mwarii
Plaintiff
Marion Gacheri (being the legal representative of the estate of M'Ibuuri M'Ikandi)
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs have locus standi to file the suit.
- 2 Whether the suit offends the maxim quic quid plantatur solo solo sedit.
- 3 Whether the plaintiffs are intermeddlers in the estate of the deceased.
Ratio Decidendi
The court found that the grounds raised in the notice of preliminary objection did not constitute pure points of law, as they required the court to consider factual matters and the necessity for proof of assertions. The court emphasized that a preliminary objection should be based solely on points of law that do not require factual ascertainment. Since the objections raised by the defendant invited arguments and factual determinations, the court held that the preliminary objection was not properly taken and dismissed it. Costs were ordered to be in the cause.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 24.4.2014 is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO. 52 OF 2014
SAMSON KUBAI...........................................................................................PLAINTIFF
STANLEY MWARII........................................................................................PLAINTIFF
VERSUS
MARION GACHERI (BEING THE LEGAL REPRESETATIVE OF THE ESTATE OF M'IBUURI M'IKANDI..............................................................................DEFENDANT
R U L I N G
The apposite Notice of Preliminary objection dated 24. 4.2014 has the following grounds:
THAT the plaintiffs have no locus standi whatsoever to file this suit and the same court be struck out on the point of law.
THAT the plaintiff's claim herein offends the maxim of quic quid plantatur solo solo sedit: that one cannot claim to have legal property on the land of another who has a good title and proprietary rights.
That the plaintiffs are intermeddlers in respect of the suit land and pending before the succession court is an application for injunction against intermeddling in SUCC. CASE NO. 64 of 2008 in the estate of the late M'IBURI MIKANDI.
THAT the plaintiffs have no legal right to bring this suit before court as it is not a registered entity and the plaintiffs are self seekers for their own selfish interests.
THAT the suit is malicious, vexatious frivolous and a total abuse of the court process AND the defendant prays that the suit be struck out with costs.
The plaintiffs and the defendant filed written submissions. I have carefully examined the parties' submissions. I have also considered the authorities they have proffered. After giving this matter careful consideration, I wish to be guided by the case of Mbuthia versus Jimba (credit corporation [1988] KLR1] which eruditely handled the area of Interlocutory Matters although it was specifically dealing with the area of injunctions. The Court of Appeal opined as follows:
“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather, to weigh up the relevant strength of each side's propositions. The lower court judge in this case had given far beyond his proper duties and made final finding s of fact on disputed affidavits.”
It has been pontificated that this approach is a veritably apt guide when courts are dealing with interlocutory matters where facts need further proof. I offer my respectful obeisance to this view. Hence the ex-tempore nature of this ruling.
I find that grounds 1, 2, 3, 4 and 5 of the Notice of Preliminary Objection do not raise pure points of law as they invite arguments and the necessity for proof of the assertions postulated therein.
In the circumstances, I find it necessary to dismiss this P. O.
Costs shall be in the cause.
Delivered in Open Court at Meru this 19th day of October, 2015 in the presence of:
Cc. Daniel/Lilian
Muthamia for Respondent
Mutembei h/b Kiome for Applicant
P. M. NJOROGE
JUDGE