REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 134 of 2010

1.        DURRAN INVESTMENTS LIMITED)

2.        ARLEEN MBURU                             )…………………………PLAINTIFFS/APPLICANTS

Versus

1.        CHRISTOPHER KANYINGI KIBE)

2.        JOEL KIBE                                    )…………………………DEFENDANTS/RESPONDENT

RULING

            I was to begin hearing of the Plaintiff’s chamber Summons dated 9^th March 2010 prosecuted by Dr. John Khaminwa when the Defendant’s Counsel M/s Githinji raised a preliminary objection not only against the Chamber Summons but also against the Plaint stating that they both be struck out.  The Preliminary Objection dated 16^th March 2010 had been filed and served.

            From what was brought to my attention during the hearing of the Preliminary Objection, I found no evidence or sufficient evidence proving:

1.        That the Plaintiff’s suit and the Chamber Summons were frivolours, vexatious and an abuse of the process of the court;

2.        That this court has no jurisdiction to hear and determine issues in the suit simply because criminal prosecution could also be maintainable for determination – concerning same matter;

3.        That the verifying affidavit in support of the suit is fatally defective because provisions of Order VII Rule 1 (1), (2) and Order III rule 2 of the civil Procedure Rules have not been complied with;

4.        That the supporting affidavit of Arleen Mburu sworn on 9^th March 2010 is fatally defective and incompetent for failing to comply with Order III Rule 3 of the Civil Procedure Rules.

            That being the position, I do find that this is a preliminary objection which, though rightly raised, has no merits to sustain it.  The said Preliminary Objection is therefore dismissed with costs to the Plaintiffs.

            Dated this 28^th day of April 2010.

J.M. KHAMONI

JUDGE

Present:

………………………………..for the Applicants

………………………………..for the Respondents

Court Clerk:  Kabiru