Wanja & another v Roothaert (Miscellaneous Application E193 of 2021) [2022] KEHC 10255 (KLR) (3 June 2022) (Ruling)
Neutral citation:
[2022] KEHC 10255 (KLR)
Republic of Kenya
Miscellaneous Application E193 of 2021
MA Odero, J
June 3, 2022
Between
Charity Hilda Wanja
1st Applicant
Rootahaert Ndwiga
2nd Applicant
and
Ralh Roothaert
Respondent
Ruling
1.Before this Court for determination is the Notice of Preliminary objection dated 24th March 2022. The Respondent Ralph Roothaert filed the Preliminary objection challenging the Notice of motion dated 15th October 2021 filed by the Applicant. The said Preliminary objection was premised upon the following grounds:-
2.The Respondent Charity Hilda Wanja Ndwiga filed a Response dated 15th March 2022 in which she opposed the Preliminary Objection on the following grounds:-
3.The Preliminary Objection was canvassed by way of written submissions. The Respondent filed the written submissions dated 28th March 2022 whilst the Applicant relied upon her written submissions dated 25th March 2022.
Background4.The applicant herein filed in this court the Notice of Motion dated 15th October 2021 in which she sought the following orders:-
5.In response to this notice of motion the Respondent filed the Preliminary Objection dated 24th March 2022.
Analysis and Determination
DATED IN NAIROBI THIS 3RD DAY OF JUNE 2022.............................................MAUREEN A. ODEROJUDGE
6.I have considered the Preliminary Objection filed by the Respondent, the Reply filed thereto as well as the written submissions filed by both parties.
7.The definition of what constitutes a preliminary objection was given in the case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd 1969 E.A as follows:-
8.In Nitin Properties Ltd v Singh Kalsi & another [1995] the Court of Appeal states as follows:-
9.The Respondent has claimed that the Applicants suit is fatally and incurably defective as it has been instituted by way of a Notice of Motion which is not a legally recognized means of instituting a suit.
10.The Applicant on the other hand argues that the Preliminary objection does not raise a pure point of law. She submits that under Article 159 of the Constitution of Kenya 2010 courts are required to administer substantive justice.
11.Section 19 of the Civil Procedure Act Cap 21 states that: -
12.Likewise Order 3 Rule (i) (ii) of the Civil Procedure Rules 2010 provides that:-
13.Both section 19 and Order 3 use the word shall. This makes the filing of a plaint a mandatory provision of law. It is not a discretionary directive. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a property instituted suit. The Applicant did not file any plaint in this matter.
14.In Geoffrey Ndungu Theuri vs Law Society of Kenya [1988] eKLR, the Court stated as follows: -
15.In Photo Energy Limited Vs Hashi Energy Limited Misc 180 of 2018 the Court stated as follows:-
16.In this matter the Applicant did not anchor her Notice of Motion in a suit. She does not have a competent suit before the court. The application is not anchored in any pleading to give it validity.
17.In her response opposing the Preliminary Objection the Applicant states that the Preliminary Objection is bad in law as it seeks to derail the hearing of the main suit. Which suit is the Applicant referring to, the court asks? There is no plaint filed in this matter. No suit exists. The suit (if filed) would indicate the substantive or final prayers which the applicant would be seeking. Further the Applicant in opposing the Preliminary Objection places reliance on Article 159 (2) (d) of the Constitution which provides that: -
18.Not every procedural blunder can be excused as a ‘mere technicality’. The filing of a suit is a mandatory statutory provision which the court cannot simply wish away. In the case of Dishon Ochieng v Sda Church [2012] eKLR the court held that an application must be anchored in a plaint and that failure to comply renders the said application fatally defective.
19.The failure/omission of the Applicant to file substantive suit cannot be overlooked as a “mere technicality.”
20.Article 159(d) cannot be used to excuse glaring omissions in adhering to statutory provisions. In Scope Telmatics International Sales Limited v Stoic Company & Another [2017] eKLR, it was held that -
21.Based on the foregoing, I find that the omission/failure by the Applicant to file a suit by way of a plaint on which to anchor her application renders the said application fatally defective and therefore a non-starter. I find that the Preliminary Objection is merited. The application dated 15th October 2021 is hereby struck out.
22.Costs to be met by the applicant.