[2015] KEHC 5015 (KLR)
The court found that neither party's submissions addressed pure issues of law as required for a valid preliminary objection. Instead, both sides raised matters that should have been canvassed during the substantive hearing of the Notice of Motion. Citing the principle from Mukisa Biscuits Co. v. West End...
Source-derived case information.
- Citation
- [2015] KEHC 5015 (KLR)
- Parties
- Applicant: Translakers Limited; Applicant: Melech Eng. Construction Co.; Respondent: Andrew Momanyi & Another
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 4 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Stay of Execution, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Translakers Limited
Applicant
Melech Eng. Construction Co.
Applicant
Andrew Momanyi & Another
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised pure issues of law as required by law.
- 2 Whether the preliminary objection should be upheld or dismissed.
Ratio Decidendi
The court found that neither party's submissions addressed pure issues of law as required for a valid preliminary objection. Instead, both sides raised matters that should have been canvassed during the substantive hearing of the Notice of Motion. Citing the principle from Mukisa Biscuits Co. v. West End Distributors, the court held that the preliminary objection did not meet the threshold for consideration and was therefore dismissed. The parties were directed to proceed with the substantive application.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Parties are directed to fix the Notice of Motion for hearing at the registry.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HC MISC. NO. 4 OF 2014
TRNSLAKERS LIMITED …....... ….................1ST DEFENDANT/APPLICANT
MELECH ENG. CONSTRUCTION CO.....…........2ND DEFENDANT/APPLICANT
VERSUS
ANDREW MOMANYI & ANOTHER …................PLAINTIFF/RESPONDENTS
RULING
On 21st January, 2014 the applicant filed a Notice of Motion in which she sought a Stay of Execution of the decree/judgment in Kisumu CMCC 184 OF 2012 and leave to file an appeal out of time. That application was heard by Muchelule -J who through a ruling read on his behalf by Chemitei-J on 27th June 2014 dismissed the same. On 10th July 2014 the applicant filed another Notice of Motion seeking to review the ruling read by Chemitei-J on 27th June, 2014 and also an order to order the taxing master to give reasons for the decision for arriving at costs of the sum of ksh. 134,830/-. Before that application could be heard the 2nd defendant/respondent filed a Notice of Preliminary Objection dated 23/7/2014. the matter could therefore not proceed on the Notice of Motion and on 9th October, 2014 Chemitei-J directed the parties to file written submissions on the Preliminary Objection. Submissions were duly received from both sides. Unfortunately those of the applicants do not address the preliminary objection but rather canvass the Notice of Motion. Those of the 2nd Respondent too raise matters that ought to have been raised at the hearing of the Notice of Motion. They do not raise pure issues of law such as envisaged in the celebrated case of Mukisa Biscuits Co. V. West End Distributors ( 1969) EA 696. Accordingly, the preliminary objection is dismissed and parties are directed to fix the Notice of Motion for hearing at the registry. Costs shall be in the cause.
Signed, dated and delivered this 19th day of March, 2015.
In the presence:-
Mr. Wachira advocate for 1st defendant/applicant
Mr. P.J. Otieno or Odambu for respondents
Court clerk: Moses Okumu