[2025] KEHC 3343 (KLR)
The court held that the preliminary objection did not raise a pure point of law as required by the established legal standard. The defendant's arguments regarding the lack of a known cause of action and the applicability of the Children’s Act could not be determined at the preliminary stage without evidence. The...
Source-derived case information.
- Citation
- [2025] KEHC 3343 (KLR)
- Parties
- Plaintiff: Peter Wambugu Wambui; Defendant: Samuel Njenga Ndungu
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Civil Case E002 of 2024
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- KW Kiarie
- Legal Topics
- Preliminary Objection, Cause of Action, Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Wambugu Wambui
Plaintiff
Samuel Njenga Ndungu
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is frivolous, vexatious, or an abuse of court process.
- 2 Whether the suit is fatally defective for lack of a known cause of action or legal basis.
- 3 Whether the Children’s Act applies to an adult claiming parental maintenance.
Ratio Decidendi
The court held that the preliminary objection did not raise a pure point of law as required by the established legal standard. The defendant's arguments regarding the lack of a known cause of action and the applicability of the Children’s Act could not be determined at the preliminary stage without evidence. The court emphasized that it is premature to strike out a suit on such grounds before evidence is adduced, and that the proper time to determine the legal sufficiency of the claim is after the facts have been established. Consequently, the preliminary objection was found to lack merit and was dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
Wambui v Ndungu (Civil Case E002 of 2024) [2025] KEHC 3343 (KLR) (Civ) (20 March 2025) (Ruling)
Neutral citation: [2025] KEHC 3343 (KLR)
Republic of Kenya
In the High Court at Nyandarua
Civil
Civil Case E002 of 2024
KW Kiarie, J
March 20, 2025
Between
Peter Wambugu Wambui
Plaintiff
and
Samuel Njenga Ndungu
Defendant
Ruling
1. The defendant moved the court through a Notice of preliminary objection dated the 17th day of September 2024. He is seeking the following orders:a.That the suit is frivolous, vexatious and an abuse of the Honourable court process.b.That the suit is fatally defective since it raised no known cause of action, and neither is it premised in any recognizable legal provision known under common civil or criminal law.c.That the plaintiff is an adult claiming for purported parental maintenance under unknown legal provisions since the Children’s Act is not applicable.d.That under the scope of the Children’s Act, the plaintiff’s claim offends the limitations of Actions Act; hence, the same is fatally defective and ought to be struck out with costs.
2. The preliminary objection was opposed on the following grounds:a.It has no legal basis.b.The preliminary objection is not on a point of law.c.That this court has jurisdiction to hear and determine this suit.
3. A preliminary objection raises purely issues of law. The Court of Appeal in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited (1969) EA. 696 (Sir Charles Newbold P) observed as follows:... A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse issues. This improper practice should stop.
4. The defendant has claimed that the suit is fatally defective, as it raises no known cause of action and is based on no recognizable legal provision under common civil or criminal law. Since no party is required to plead the law under which the claim is based in the pleading, it would be premature to determine this issue. This can only be determined after adducing evidence.
5. I, therefore, find that the preliminary objection lacks merit. The same is dismissed with costs.
DELIVERED AND SIGNED AT NYANDARUA THIS 20TH DAY OF MARCH 2025. KIARIE WAWERU KIARIEJUDGE