1. This ruling relates to an application dated 22nd August, 2024, coming up for interparties hearing. The application in a nut shell seeks the suspension of a disciplinary hearing against the Applicant/Petitioner scheduled for 29th August, 2024. Mr. Onsongo appearing for the 1st and 3rd Respondent indicated that he had filed a notice of Preliminary Objection together with grounds of opposition dated 27th August, 2024 and served them upon the Counsel for the Applicant/Petitioner.
2. Mr. Nyamweya who is on record for the 2nd Respondent, similarly indicated that he had equally filed grounds of opposition and a preliminary objection on both the application before court and the main petition.
3. Mr. Mwamu for the Applicant/Petitioner argued that the application proceeds for hearing and the preliminary objections filed by the Respondents be urged as responses to the application. Counsels for the Respondents objected to proceeding in this manner premised on the holding in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR - Civil Appeal 50 of 1989, that jurisdiction is everything and a court cannot proceed when jurisdiction is contested.
4. The Respondents further argued that hearing of the application means that the court will be proceeding without first determining whether or not it has jurisdiction to entertain the application.
Determination
5. Indeed, as correctly submitted by the Respondents, this court is in receipt of two notices of preliminary objection one from the 1st and 3rd Respondents and another filed by the 2nd Respondent.
6. The two objections relate to the jurisdiction of this Court to entertain the application before it, as well as the petition filed therewith. It is now settled that where a question of jurisdiction is raised, the same must be decided before the case proceeds. In the premise, the preliminary objections raised by the Respondents thus take precedent, and the same should be heard and determined before the application dated 22nd Augusts, 2024 can be set down for hearing.
7. This being the case, I proceed to make the following orders in the interest of justice:
i. That the Preliminary Objections filed by the Respondents be heard on 1/10/2024
ii. That in the interim, the disciplinary proceedings against the Applicant/Petitioner be and are hereby suspended pending hearing of the preliminary Objections.
iii. Orders of the court.
Issued this 28th Day of August, 2024.
2. Mr. Nyamweya who is on record for the 2nd Respondent, similarly indicated that he had equally filed grounds of opposition and a preliminary objection on both the application before court and the main petition.
3. Mr. Mwamu for the Applicant/Petitioner argued that the application proceeds for hearing and the preliminary objections filed by the Respondents be urged as responses to the application. Counsels for the Respondents objected to proceeding in this manner premised on the holding in Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR - Civil Appeal 50 of 1989, that jurisdiction is everything and a court cannot proceed when jurisdiction is contested.
4. The Respondents further argued that hearing of the application means that the court will be proceeding without first determining whether or not it has jurisdiction to entertain the application.
Determination
5. Indeed, as correctly submitted by the Respondents, this court is in receipt of two notices of preliminary objection one from the 1st and 3rd Respondents and another filed by the 2nd Respondent.
6. The two objections relate to the jurisdiction of this Court to entertain the application before it, as well as the petition filed therewith. It is now settled that where a question of jurisdiction is raised, the same must be decided before the case proceeds. In the premise, the preliminary objections raised by the Respondents thus take precedent, and the same should be heard and determined before the application dated 22nd Augusts, 2024 can be set down for hearing.
7. This being the case, I proceed to make the following orders in the interest of justice:
i. That the Preliminary Objections filed by the Respondents be heard on 1/10/2024
ii. That in the interim, the disciplinary proceedings against the Applicant/Petitioner be and are hereby suspended pending hearing of the preliminary Objections.
iii. Orders of the court.
Issued this 28th Day of August, 2024.