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High CourtDismissedCivil Case No. 24 of 2015
Ngina Gitiba v South Nyanza Sugar Company Limited
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·~8 min to read original · ~4 min briefThe bottom line
#Preliminary objections must address pure law, not facts that require evidence or investigation.
What this practically means
#Executive summary
#This ruling by A. C. Mrima, J of the High Court at Migori determined a Notice of Preliminary Objection dated 23/07/2020 filed by the Plaintiff, Ngina Gitiba, against the Defendant's Notice of Motion dated 13/07/2020, which challenged warrants of attachment and sale issued to M/s Muriri Auctioneers on 11/06/2020 in execution of a money decree. The Plaintiff argued that the Defendant was in contempt of the judgment of 14/02/2019 and the order of 8/08/2019, having failed to satisfy the decree or the conditions of a conditional stay of execution, and had therefore lost its right of audience; the Plaintiff sought striking out of the motion. The Defendant opposed, contending that contempt proceedings required compliance with Section 5 of the Judicature Act and leave, which had not been obtained, and that the motion only challenged untaxed legal costs exceeding Kshs. 30,000,000 irregularly included in the warrants. The court considered the law on preliminary objections from Mukisa Biscuits, Musakali and Oraro v Mbaja, and held that the objection rested on disputable facts requiring investigation, so it was not a pure point of law and was a false start. The objection was dismissed with costs abiding the outcome of the motion. The court gave directions for written submissions on the motion and stayed execution of the warrants, including the scheduled sale of the Defendant's factory premises, pending determination of the motion. Leave to appeal was granted.
Key legal issues
#01
Whether a preliminary objection can found contempt proceedings
Holding
It cannot where the alleged contempt rests on disputed facts; such an objection is not a pure point of law and is a false start
Reasoning
The court applied the Mukisa Biscuits definition of a preliminary objection and Ojwang J's elaboration in Oraro v Mbaja. Because the Plaintiff's claim that the Defendant was in contempt for failing to satisfy the judgment was contested, the court would have to investigate and settle facts, disqualifying the objection as a preliminary point of law.
p. 2
Legal principles established
#- A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidential proof
Court orders
#- 1.The Notice of Preliminary Objection dated 23/07/2020 is dismissed, with costs to abide the outcome of the Notice of Motion dated 13/07/2020
- 2.The Notice of Motion dated 13/07/2020 to be heard by way of written submissions
- 3.Plaintiff/Respondent to file and serve response within 14 days
- 4.Defendant/Applicant at liberty to file supplementary response and written submissions within 14 days
- 5.Plaintiff/Respondent and the Proposed Party to file and serve written submissions within 14 days
- 6.Matter to be fixed for highlighting of submissions on 21/10/2020
- 7.Leave granted to any party wishing to appeal the decision
- 8.Stay of execution of the Warrant of Attachment and Warrant of Sale issued to M/s Muriri Auctioneers on 11/06/2020 pending determination of the Notice of Motion dated 13/07/2020, including stay of the sale of the Defendant's factory premises and/or other properties scheduled for 15/08/2020
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; contempt powers under Section 5 of the Judicature Act raised by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngina Gitiba v South Nyanza Sugar Company Limited", Case Analysis (2020). Civil Case No. 24 of 2015. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.