[2009] KEHC 1835 (KLR)
The court held that the preliminary objection raised by the respondents was baseless because only applications under Order VI Rule 13 (1) (a) are not to be supported by evidence, and the applicants had not cited that sub-rule. The application to strike out the suit was properly before the court and supported by the...
Source-derived case information.
- Citation
- [2009] KEHC 1835 (KLR)
- Parties
- Appellant: Sivilius Kithuci Njuki; Appellant: Esbon Nganga Wambugu; Appellant: Ngai Kareiyu; Appellant: Ireri Ruminjo; Respondent: Alice Njuki Mukono (sued as legal representative of Njuki Mukono deceased) and 11 others
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 49 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection and Application to Strike Out Suit
- Outcome
- application dismissed with costs to the respondents
- Judges
- J Karanja
- Legal Topics
- Striking Out of Pleadings, Preliminary Objection, Injunctive Orders, Land Disputes Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sivilius Kithuci Njuki
Appellant
Esbon Nganga Wambugu
Appellant
Ngai Kareiyu
Appellant
Ireri Ruminjo
Appellant
Alice Njuki Mukono (sued as legal representative of Njuki Mukono deceased) and 11 others
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection and Application to Strike Out Suit
Legal Issues
- 1 Whether the application to strike out the suit was properly supported by evidence under the Civil Procedure Rules.
- 2 Whether the preliminary objection raised by the respondents was valid in law.
- 3 Whether the suit was vexatious, scandalous, or an abuse of court process.
Ratio Decidendi
The court held that the preliminary objection raised by the respondents was baseless because only applications under Order VI Rule 13 (1) (a) are not to be supported by evidence, and the applicants had not cited that sub-rule. The application to strike out the suit was properly before the court and supported by the necessary affidavits. The court further found that the suit was not vexatious, scandalous, or an abuse of the court process, and that the issues raised, particularly regarding the jurisdiction of the Land Disputes Tribunal and the propriety of the previous injunctive orders, required full ventilation at trial. The injunctive orders, though possibly oppressive to the applicants,...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 19/3/2009 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 49 OF 2008
SIVILIUS KITHUCI NJUKI ………………………...….....…………1ST PLAINTIFF
ESBON NGANGA WAMBUGU……….…………....………………2ND PLAINTIFF
NGAI KAREIYU……………………………..………….……………3RD PLAINTIFF
IRERI RUMINJO…………………….……………………………….4TH PLAINTIFF
VERSUS
ALICE NJUKI MUKONO-sued as legal representative of
Njuki Mukono deceased and 11 OTHERS………………..…….DEFENDANTS
RULING
The application before me is the one dated 19/3/2009. It is premised on Order VI Rule 13 (1) b, c, d of the Civil Procedure Rules. The Applicants are asking the court to strike it out. Mr. Okwaro for the Respondents raised a preliminary objection on the basis that the application should not be supported by evidence, that it is therefore bad in law and it should be struck out.
I have considered this Preliminary Objection and in my considered view, the same is baseless. The only application for striking out which is not supposed to be supported by evidence (affidavit) is one under Order VI Rule 13 (1) (a). Indeed the applicant herein has not even cited that sub-rule. It is not upto counsel for the Respondent to imply into the applicant’s application rules that they have not cited. The application is properly before the court and merits a hearing. I have considered the same along with the grounds and rival affidavits. I have studied Judge Khaminwa’s Ruling which gave prohibitory/injunctive orders against the defendants. The same is sound in law and raises some very pertinent points which can only be resolved by allowing the parties to fully ventilate their issues in court. To me, this is not merely an issue of revoking the grant in question. That cause of action will not address Judge Khaminwa’s points as to whether the matter was properly before the Land Disputes Tribunals which awarded the land to the deceased Njuki Mukono. This suit is in my considered view not vexatious or scandalous. It is not an abuse of the court process. The parties herein should be given their day in court. The injunctive orders in place may appear oppressive to the applicants but the same are necessary for the preservation of the said land. I therefore dismiss the application dated 19/3/2009 with costs to the Respondents.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 8th day of Oct 2009
In presence of:- Mr. Utuku for Mr Oyondi and also for Kinyua Kiama.