TRUFOSA C. MUDEMBEI v JOHN K. MALEMBI [2004] KEHC 1993 (KLR)
- Court
- High Court of Kenya
- Case number
- 1993
- Citation
- [2004] KEHC 1993 (KLR)
The court determines that the suit is not an abuse of the process and that the plaintiff's deposition in the verifying affidavit is correct. The court also rules that the preliminary objection cannot be raised in the manner in which the plaintiff did, as it involves points of fact. The court orders the plaintiff to file a proper verifying affidavit within 21 days.
Facts
The plaintiff, Trufosa Cheredi Mudembei, claims that the Settlement Fund Trustees (SFT) and the 1st defendant, John K. Malembi, fraudulently registered the subject land in Malembi's name. The SFT and Malembi dispute this claim and have raised a preliminary objection to the suit.
Issues
- Whether the suit is an abuse of the process.
- Whether a preliminary objection can be raised in the manner in which the plaintiff did.
- Whether the suit is duly verified.
Reasoning
The court dismisses the preliminary objection as it involves points of fact and not pure points of law. The court also finds that the verifying affidavit is insufficient and strikes it out, leaving the contents of the plaint unverified.
Outcome
The court orders the plaintiff to file a proper verifying affidavit within 21 days. The defendant is ordered to bear the costs of the application.
Orders
- Order for the plaintiff to file a proper verifying affidavit within 21 days.
- Order for the defendant to bear the costs of the application.
Authorities cited
Cases cited (1)
- Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd (1960) EA 696
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