Mailu v Kaindi & 2 others (Environment & Land Case E2 of 2020) [2023] KEELC 635 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd respondent's preliminary objection was a true point of law and whether the use of an Originating Summons instead of a Plaint was fatal
The preliminary objection was dismissed. Procedural technicalities are to be overlooked under Article 159(2)(d) and the overriding objective; the wrong procedure does not invalidate proceedings, and the court exercised its power under order 37 rule 19 to deem the Originating Summons a Plaint and continue the suit as if begun by Plaint.
The court applied the settled test from Mukisa Biscuits and Oraro v Mbaja on preliminary objections, then held that the choice of Originating Summons was a question of form. Article 159(2)(d), sections 1A, 1B and 3A of the Civil Procedure Act, and the Salat/Karua line of authority require substantive justice over technicality. Since the 3rd respondent identified no prejudice, striking out was unwarranted; order 37 rule 19 expressly permits conversion of the proceedings to a plaint.
Legal principles established
#- A preliminary objection must be on a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
- A procedural breach, such as suing by Originating Summons rather than Plaint, is not fatal where no injustice is occasioned; the court may convert the proceedings under order 37 rule 19
Court orders
#- 1.The preliminary objection dated November 5, 2021 is dismissed
- 2.The proceedings herein shall continue as if this cause had been commenced by filing a Plaint
- 3.The Originating Summons dated October 28, 2020 and the affidavit in support thereof shall be collectively deemed to be the Plaint
- 4.The plaintiff to file and serve the documents referred to in order 3 rule 2 (b) (c) and (d) of the Civil Procedure Rules within 14 days from the date of delivery of this ruling
- 5.The defendants to file and serve the Defence and all compliance documents within 14 days of service of the documents referred to in (c) above
- 6.Costs of the preliminary objection shall be in the cause
- Jurisdiction invoked
- Order 37 rules 1(a), (g) and 2(b) of the Civil Procedure Rules and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mailu v Kaindi & 2 others (Environment & Land Case E2 of 2020) [2023] KEELC 635 (KLR)", Case Analysis (2023). Originating Summons dated October 28, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/635/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.