Ruth Wakonyo Kabundu & another v Patrick Mukiri Kabundu [2017] KEELC 3798 (KLR)
The bottom line
#Kenya's High Court dismissed an attempt to throw out a family company dispute because the objection relied on affidavit facts, not pure points of law.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection qualified as a pure point of law
It did not; the accompanying Verifying Affidavit with annexures meant facts had to be ascertained, disqualifying it as a Preliminary Objection
The court applied Mukisa Biscuits and Oraro v Mbaja, noting that a Preliminary Objection must stem from the pleadings and rest on undisputed law. The Defendant's Notice was supported by a 45-paragraph Verifying Affidavit with 29 annexures used to explain and ascertain facts, and the affidavit was never expunged. The objection therefore failed at the threshold and the court declined to consider its merits.
Legal principles established
#- A Preliminary Objection must raise a pure point of law on the assumption that all facts pleaded are correct; it cannot be raised if any fact has to be ascertained
- A Preliminary Objection supported by an affidavit to ascertain facts is defective and cannot stand
- Striking out a suit is a drastic remedy reserved for plain and obvious cases; under Article 159(2)(d) courts should favour substantive justice over procedural technicalities
Court orders
#- 1.The Defendant's Notice of Preliminary Objection dated 11th April 2015 is dismissed entirely
- 2.Costs of the Preliminary Objection awarded to the Plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the suit and the Notice of Preliminary Objection dated 11th April 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Wakonyo Kabundu & another v Patrick Mukiri Kabundu [2017] KEELC 3798 (KLR)", Case Analysis (2017). HCCC No. 66 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3798/eng@2017-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.