1. I have considered the notice of Motion application dated 25th of July, 2022 and the Notice of Preliminary Objection dated 18 January, 2021 together with replying affidavit sworn on 30th October, 2023
2. The application seeks to strike out the Plaintiff’s originating summons, primarily for the reason that the same was filed by an incompetent person; and the preliminary objection is to the effect that the court lacks jurisdiction to entertain the matter because the dispute relates to an advocate client relationship.
3. As regards the question of whether or not the plaintiff is an incompetent person, I do not think that an admission that one is elderly, or in ill health amounts to incompetence or lack of mental capacity. The applicant is not a doctor, and there is not basis whatsoever, in my view for the allegation that she lacks mental capacity as alleged.
4. As regards the issue concerning jurisdiction of this court on the basis that the present matter is an advocate client dispute, based on the record before me, that issue was dealt with in a ruling dated 12 November, 2021. Documentation to that effect has been attached to the replying affidavit from Exhibits B1 to B6. The record speaks for itself in regards to the history and the crux of the dispute between the parties.
5. Further, by way of a ruling issued on 18 February, 2022, there is a clear directive by my late brother, Majanja, J. directing the Advocate, the applicant herein, to provide a detailed account of the entire money received in relation to the sale of LR No. 209/3574 within 30 days. Based on the record, the statement of account was filed, and thereafter, a challenge to the ruling by Majanja, J. was also filed, which as I understand, was dismissed. A copy of the said ruling by Majanja, J. is found at exhibit B4 of the replying affidavit. That ruling, unless overturned on appeal, or vacated, remains in force, and in my view relates to the heart of the dispute between the parties and ought to be complied with.
6. The law as regards res judicata is well settled as pronounced in Pop-in (Kenya) Ltd & 3 others vs Habib Bank AG Zürich (1990) KLR 609 which is the milestone decision. In that case the Court held inter-alia:
"…. The plea of res judicata applies not only to points which the court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time."
7. Guided by above, and looking at the record before me, in particular, at the various rulings found from Exhibits B1 to B6, it is evident to me that the issues raised in the present application are indeed res judicata. In this regard, I reiterate the contents of paragraph 5 above.
8. As regards the preliminary objection, I am of the view that the same does not raise pure points of law, but rather, is based on disputed issues of fact. Further, given the numerous the rulings on the record, it is evident that the preliminary objection was filed very late in the day, and after the court was already seized of this matter. This is evidenced by the fact that the court has already made several interlocutory findings thus far.
9. The test in relation to preliminary objection was set out in the seminal case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, where the court held as follows:
“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”
10. Further to the above, the court stated that a preliminary objection must first, raise a point of law based on ascertained facts and not on evidence:
“In the words of Sir Charles Newbold P, at page 701,
...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 the 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.” (emphasis mine)
11. Applying the test above, I find that the preliminary objection fails. Based on the reasons set out above, I find and hold that the application and the preliminary objection are without merit. The same are dismissed with costs.
2. The application seeks to strike out the Plaintiff’s originating summons, primarily for the reason that the same was filed by an incompetent person; and the preliminary objection is to the effect that the court lacks jurisdiction to entertain the matter because the dispute relates to an advocate client relationship.
3. As regards the question of whether or not the plaintiff is an incompetent person, I do not think that an admission that one is elderly, or in ill health amounts to incompetence or lack of mental capacity. The applicant is not a doctor, and there is not basis whatsoever, in my view for the allegation that she lacks mental capacity as alleged.
4. As regards the issue concerning jurisdiction of this court on the basis that the present matter is an advocate client dispute, based on the record before me, that issue was dealt with in a ruling dated 12 November, 2021. Documentation to that effect has been attached to the replying affidavit from Exhibits B1 to B6. The record speaks for itself in regards to the history and the crux of the dispute between the parties.
5. Further, by way of a ruling issued on 18 February, 2022, there is a clear directive by my late brother, Majanja, J. directing the Advocate, the applicant herein, to provide a detailed account of the entire money received in relation to the sale of LR No. 209/3574 within 30 days. Based on the record, the statement of account was filed, and thereafter, a challenge to the ruling by Majanja, J. was also filed, which as I understand, was dismissed. A copy of the said ruling by Majanja, J. is found at exhibit B4 of the replying affidavit. That ruling, unless overturned on appeal, or vacated, remains in force, and in my view relates to the heart of the dispute between the parties and ought to be complied with.
6. The law as regards res judicata is well settled as pronounced in Pop-in (Kenya) Ltd & 3 others vs Habib Bank AG Zürich (1990) KLR 609 which is the milestone decision. In that case the Court held inter-alia:
"…. The plea of res judicata applies not only to points which the court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time."
7. Guided by above, and looking at the record before me, in particular, at the various rulings found from Exhibits B1 to B6, it is evident to me that the issues raised in the present application are indeed res judicata. In this regard, I reiterate the contents of paragraph 5 above.
8. As regards the preliminary objection, I am of the view that the same does not raise pure points of law, but rather, is based on disputed issues of fact. Further, given the numerous the rulings on the record, it is evident that the preliminary objection was filed very late in the day, and after the court was already seized of this matter. This is evidenced by the fact that the court has already made several interlocutory findings thus far.
9. The test in relation to preliminary objection was set out in the seminal case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, where the court held as follows:
“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”
10. Further to the above, the court stated that a preliminary objection must first, raise a point of law based on ascertained facts and not on evidence:
“In the words of Sir Charles Newbold P, at page 701,
...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 the 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.” (emphasis mine)
11. Applying the test above, I find that the preliminary objection fails. Based on the reasons set out above, I find and hold that the application and the preliminary objection are without merit. The same are dismissed with costs.