b. THAT in the circumstances, the Appellant’s Appeal dated 17th November, 2022 and the orders/prayers sought therein are a monumental procedural and substantive legal nullity and a proper candidate for dismissal and or striking out with costs to the respondent.
2. The Respondent filed submissions and made brief oral presentations. Further the respondents proposed that the following are the issues for determination before the court;
a. Whether the Preliminary Objection is well founded and valid;
b. Whether the Appeal offends Sections 13(2) and 16A(1) of the Environmental and Land Court Act Cap 8D Laws of Kenya;
3. The court finds that the main ground on which the preliminary objection is based is this courts jurisdiction.
4. The Appellant responded to the Preliminary Objection and filed submissions. They argued that the Objection which was filed at the 11th hour was just a delaying tactic as the Respondent did not raise that issue of jurisdiction in the trial court. They also pointed out that it raises matters that need one to delve into the facts and evidence and which are at the discretion of the court.
5. The locus classicus on preliminary objections, Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, sets the following conjunctive test to determine the success of a preliminary objection;
a. It should raise a pure point of law;
b. It is argued on the assumption that all the facts pleaded by the other side are correct;
c. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
6. The court has considered all the submissions and authorities cited and finds that The Respondent's case does not satisfy the elements of this test. This is because;
i. It is not raised on a pure point of law. Were the court to entertain the preliminary objection of the respondent in this matter, it would necessitate a perusal of the lower Court’s records and pleading filed therein, to determine the dispute This perusal would automatically follow that the court has been called to determine issues of fact and therefore the preliminary objection is not based purely on issues of law;
ii. The matter proceeded with the full participation of the Respondent in the trial court and they did not raise the issue of jurisdiction . They also participated in the mediation that the court directed and the only issue on appeal is whether the interest and costs are payable.The court agrees with the Appellant that these are discretionary issues within the 3rd rule .
7. This notwithstanding, as per Order 42 Rule 13 (2), the Preliminary Objection ought to have been raised at the time of issuing directions, not at the penultimate stage of this appeal. For this reason alone, this Honourable Court finds this Preliminary Objection fatally defective, having offended the said statutory provision. The court agrees that raising the Preliminary Objection at this tail is could be delaying tactic to further stalling the determination of the appeal on merits.
8. For the aforementioned reasons, this Honourable Court finds that the Preliminary Objection by the Respondent herein, lacks merit and it is therefore dismissed.
9. Costs shall abide in the determination of the appeal.
10. The respondent is given 14 days to file and serve their submissions in the main Appeal .
11. The Judgment will be delivered on the 31st day of July 2024.
12. It is so ordered.
Ruling delivered, dated and signed on this 7th day of June 2024.
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HON. WENDY K MICHENI
JUDGE
Delivered in the presence of;
Mr. Aaron Kinyanjui - Appelant
Mr. Oguye - Respondent
Ms. Gladys - Court Assistant
JudgmentJIM SAMUEL GITAU VS TENDAI VILLAS LIMITTED3 min read
JIM SAMUEL GITAU VS TENDAI VILLAS LIMITTED
High Court at Kiambu High Court · · Wendy Micheni
1. The Respondent filed a preliminary objection on the 31st of May 2024 via a Notice of motion seeking the dismissal and/or striking out with costs of the entire Appellant’s Appeal dated 17th November, 2022 for the honourable court lacks jurisdiction to entertain hear and/or determine the Appeal on the following gronds;
a. THAT the instant Appeal is fatally defective as it offends Sections 13(2) and 16A(1) of the Environment and Land Court Act Cap 8D Laws of Kenya given that this Honourable Court lacks jurisdiction to hear and determine to hear and determine the Appeal since the dispute in the trial Court related to the sale and purchase of property Maisonette No. 24 erected on Title Number Dagoretti/Thogoto/4731 a matter within the meaning of Section 13(2) (d) of the Environment and Land Court.