[2010] KEHC 3196 (KLR)
The court held that the issues raised by the 2nd defendant, namely limitation, locus standi, and abuse of process, are preliminary in nature and go to the jurisdiction of the court. Such issues must be determined before the suit can proceed to full hearing. The plaintiff's preliminary objection, which sought to...
Source-derived case information.
- Citation
- [2010] KEHC 3196 (KLR)
- Parties
- Plaintiff: Zahil Mohammed Rehmtulla; Defendant: The Public Trustee; Defendant: Patrick Donga Kangethe; Defendant: Ratan Shivji Bhudia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1944 of 1998
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Legal Topics
- Preliminary Objection, Striking Out Suit, Locus Standi, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zahil Mohammed Rehmtulla
Plaintiff
The Public Trustee
Defendant
Patrick Donga Kangethe
Defendant
Ratan Shivji Bhudia
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's preliminary objection to the 2nd defendant's application to strike out the suit is sustainable.
- 2 Whether the issues raised by the 2nd defendant regarding limitation, locus standi, and abuse of process should be determined before the full hearing.
Ratio Decidendi
The court held that the issues raised by the 2nd defendant, namely limitation, locus standi, and abuse of process, are preliminary in nature and go to the jurisdiction of the court. Such issues must be determined before the suit can proceed to full hearing. The plaintiff's preliminary objection, which sought to prevent the hearing of the 2nd defendant's application to strike out the suit, was therefore not sustainable. The court dismissed the plaintiff's preliminary objection with costs, allowing the 2nd defendant's application to proceed to hearing.
Court Disposition
preliminary objection dismissed with costs
Orders
- The plaintiff's preliminary objection is dismissed with costs to the 2nd defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1944 of 1998
ZAHIL MOHAMMED REHMTULLA ……..........………………PLAINTIFF
V E R S U S
THE PUBLIC TRUSTEE ………………………………1ST DEFENDANT
PATRICK DONGA KANGETHE …………......………..2ND DEFENDANT
RATAN SHIVJI BHUDIA ………………….....………..3RD DEFENDANT
R U L I N G
On 31st March, 1999 Justice Amin ordered that the suit be disposed of by way of full hearing. Before this, on 15th February, 1999 Justice Mbogholi had made a consent order that the injunction that had been issued by Justice Aluoch (as she then was) on 14th September, 1998 do remain in place until the suit is heard and determined. The order of Justice Mbogholi effectively dealt with the chamber application of the Plaintiff which was dated 11th August, 1990.
On 4th May, 1999 the 2nd Defendant filed a chamber application under section 3A of the Civil Procedure Act and Order 6 rule 13 of the Civil Procedure Rules seeking to have struck out the Plaintiff’s suit because it was time-barred, it was unsustainable in law, it was an abuse of the process of the court and that the Plaintiff had no locus standi. The Plaintiff filed grounds of opposition to defend the application. On 30th September, 2009 the Plaintiff filed a notice of preliminary objection to say that the application was disposed of on 27th July, 1999 when Justice Amin ordered that the suit goes to full hearing. As indicated above, Justice Amini’s order was made on 31st March, 1999. It was only reiterated on 27th July, 1999.
When Justice Amin made the order that the case do proceed to full hearing the competence of the suit or the capacity of the Plaintiff to bring the suit had not been attacked. It is notable that on 5th May, 1999 the application dated 4th May, 1999 was placed before Justice Githinji (as he then was) and he directed that it be heard on 9th June, 1999. It was adjourned severally until 27th July, 1999 when it went before Justice Amin for a mention. He reiterated that the suit be heard as indicated above.
With respect to the learned judge, the points being raised by the 2nd Defendant are such that, if sustained, may dispose of the suit. They are preliminary and go to the jurisdiction of the court to entertain the suit. They have to be disposed of before the suit can be heard. (See MUKISA BISCUIT MANUFACTURING CO. LTD –VS- WEST END DISTRIBUTORS LTD. [1966] E.A 696).
The result is that the objection taken by the Plaintiff is not sustainable and is dismissed with costs.
DATED AND DELIVERED AT NAIROBI
THIS 26TH DAY OF APRIL 2010
A. O. MUCHELULE
J U D G E