Mugo And Gatungo Limited v Fredrick M’ithinji [2015] KEHC 2544 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

E & L 84  OF 2015

MUGO AND GATUNGO LIMITED ..................................APPLICANT

VERSUS

FREDRICK M’ITHINJI ALIAS FREDRICK GITHINJI .......RESPONDENT

RULING

This Notice of Preliminary Objection filed by the Plaintiff is dated 28th September  2015. It reads as follows:-

TAKE NOTICEthat at the hearing of the Notice of Motion dated 16th September, 2015 filed herein on behalf of the Applicant the Respondent will contend as a preliminary point of law, to be determined in limine , that the Applicant’s application is hopelessly misconceived, frivolous, totally devoid  of merit and mala fides for the reason inter alia, that the Court lacks jurisdiction to hear this application.

WHICH OBJECTIONis grounded upon the record of proceedings and the Replying Affidavit filed on behalf of the Respondent and on such other or further grounds as may be adduced at the hearing hereof.

This Notice of Preliminary Objection has been heard before the application by the Plaintiff dated 16/09/2015 can be heard.   This is right and fair as if this Preliminary Objection succeeds, there will be no need for hearing of the application.

Mr. Muthamia , for the Plaintiff supported the Preliminary Objection. Mr. Mutuma  opposed it on grounds that it does not raise pure points of all.

I have carefully considered this matter.  I find that all the grounds proffered  by the respondent invite arguments and are therefore not pure points of law.  For this reason, the Preliminary Objection is  dismissed with costs being in the cause.

I do note that the Preliminary Objection is wrongly said to have been filed by the  Firm of Waiganjo Wachira & Co for the Plaintiff/Respondent.  The correct position is that this firm represents the Defendant/Respondent.

As already stated, the Preliminary Objection is dismissed.

Delivered in open Court at Meru this 30th day of September, 2015 in the presence of:-

CC: Lilian/Daniel

Mutuma holding brief for  Mrs. Kibe for Plaintiff

Muthamia for Defendant.

P.M. NJOROGE

JUDGE