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JudgmentDORCAS KEMUNTO NYANG'ACHA VS DAVID OBARE OMWOYO4 min read

DORCAS KEMUNTO NYANG'ACHA VS DAVID OBARE OMWOYO

High Court at Kisii High Court · · Odera Teresa Achieng

  1. have seen the notice of preliminary objection dated 29.10.24 by the respondent on the grounds that :
  2. The notice of objection as well as the chamber summons application dated 14.10.24 as filed are a contravention of Rule 55 of the Auctioneer Rules .    a. That consequently the instant application is frivolous vexatious and lacking in merit. b. That in the circumstances the application is procedurally and substantively bad in law  hence suitable to be dismissed and /or stuck out with costs .
  3. The preliminary objection proceeded  by way of written submissions .
  4. I have  carefully considered the objection and the response and the submissions by both parties . The respondent submitted that the application offends provisions of Rule 55 of the Auctioneer rules as the application was filed 3 months after the ruling . The applicant submitted that she was not served with the notice of the judgment and she learnt of the same when she was served with a proclamation notice of 14.10.24. I have   perused the record of the lower court and noted that the ruling was initially scheduled for 7.6.24 but was delivered on 25.7.24 via email to wochoki@yahoo.com(to advocates for respondent ).  Rule 55 (4) of the Auctioneers Rules 1997 provides that an appeal against the decision of a registrar, a magistrate or the Board shall be made to a Judge in chambers and sub -rule 5 provides that the memorandum of appeal shall be by chamber summons within 7 days of the decision. In the case of Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors Ltd. (1969) EA 696 it was held that a preliminary objection is   one which must be able to dispose of the suit. From the foregoing the issue of whether the applicant deliberately failed to file the reference within time must he heard in the application as  it is a mixed issue  issue  of fact and law .  It thus cannot dispose of the application at this stage .

2.On the form of appeal the said rule 55 (5) provides  that the appeal shall be by way of chamber summons . The applicant moved this court by way of chamber summons dated 14.10.24 in which he seeks leave to file  a reference out of time, stay of execution of ruling dated 25.7.24, setting aside of the said ruling , that the matter be sent back for re-taxation   and she also filed a notice of objection dated 14.10.24 wherein she listed the grounds of appeal . This is the procedure which is challenged in the preliminary objection that it offends the provisions of Rule 55 (5) of the Auctioneers rules and is thus fatally defective  . The applicant submitted that she moved the court by way of a chamber summons and if there is any defect then the same  is curable under Article 159 of the constitution .

3. It is  true that the chamber summons dated 14.10.24 filed herein does not conform with the rule 55 as the grounds of appeal are not on the face of the application  but on a different document titled notice of  objection . However, I note that prayer 2 of the same seeks leave to file the reference out of time . There is nothing wrong with the said prayer and this  court has a duty to determine the said prayer first and the other prayers which relate to the merits and demerits of the reference will subsequently be dealt with later.

4. Article 159 (2) (d) of the constitution enjoins courts to determine matters without undue regard to technicalities of procedure . I therefore find that the defect is that of form and can be cured by Article 159 in the interest of justice as the applicant can  still have time to amend the chamber summons after the leave is granted as the leave and substantive orders cannot be granted at the same time .

5. I find that the preliminary objection is pre-mature  devoid of merit and I proceed to overrule the same . each party will bear its own costs . 


DELIVERED VIRTUALLY IN THE PRESENCE OF –

MAROKO : FOR APPLICANT

Ochoki -present

Respondent present

OIGO – COURT ASSISTANT

Ochoki:  I have taken instructions and so Mr Maroko can get leave to file the reference . We also intend to commence talks with him on the matters. We shall file our response .

Maroko : We had a talk with my learned senior and we agreed that prayer 2 be allowed and respondent can file responses . I will reach out to my colleague with a view to settlement.

Ruling

I have heard  both counsel. By consent Prayer 2 of the chamber summons dated 14.10.24 is allowed. The appeal /reference be filed and served within 7 days from today.  Parties are free to engage in out of court talks towards settlement of the matter.  Mention on  10.2.25 for compliance .


    DORCAS KEMUNTO NYANG'ACHA VS DAVID OBARE OMWOYO DORCAS KEMUNTO NYANG'ACHA VS DAVID OBARE OMWOYO