Automated Summary
Key Facts
The court ruled on preliminary objections in a civil case involving Mirriam Wangare Kassim (also known as Miriam Kassim Malambu) against Samuel Muciri W'Njuguna and the Attorney General. The suit against the Attorney General was struck out for non-compliance with the notice requirement under Section 13A of the Government Proceedings Act. The suit against the first defendant (Samuel Muciri W'Njuguna) was not struck out as the objections raised (e.g., falsity of pleadings, defective affidavits) were factual matters not permissible in preliminary objections, which only address pure legal issues.
Issues
- The court determined that the suit against the 2nd Defendant was defective for failing to serve the required notice under Section 13A of the Government Proceedings Act, leading to its dismissal.
- The court ruled that objections concerning the competency of the application and the truth of the plaintiff's statements were based on factual matters, which cannot be addressed via preliminary objections as they are not pure legal issues.
Holdings
- The court rejected the argument that failure to state a place of abode or disclose information sources invalidates the entire affidavit. These issues are deferred to the substantive hearing. The ruling clarifies that mixed factual and legal objections cannot succeed as preliminary objections, as they do not meet the threshold for striking out a suit or application.
- The suit against the Attorney General (2nd Defendant) is struck out due to non-compliance with Section 13A of the Government Proceedings Act, which requires a 30-day notice period before instituting proceedings against the Government. The court emphasized that this statutory requirement is mandatory and cannot be excused. The suit against the 1st Defendant is not struck out because the preliminary objections raised are matters of fact, not pure legal issues, and thus cannot be addressed at this stage. The court cited principles from Mukisa Biscuits vs West End Distributors Ltd (1969) E.A 696, stating that preliminary objections must raise pure legal points assuming the facts pleaded are true.
Remedies
- The suit against the 2nd Defendant (the Attorney General) is struck out for non-compliance with the Government Proceedings Act, with no order as to costs.
- The suit against the 1st Defendant is not struck out, as the objections raised primarily involved factual matters not permissible in a preliminary objection.
Legal Principles
The court emphasized the mandatory requirements under Section 13A of the Government Proceedings Act, which necessitates serving a notice to the Government 30 days prior to instituting proceedings. Failure to comply renders such proceedings defective and inadmissible.
Precedent Name
- Walimbwa vs AG
- James Orengo vs A-G and another
- Mukisa Biscuits vs West End Distributors Ltd
Cited Statute
Government Proceedings Act
Judge Name
Isaac Lenao
Passage Text
- "Section 13 A of the Government Proceedings Act is in clear mandatory terms that do not admit any excuses or exceptions. Its plain meaning to my mind is that no proceedings against the Government under the Government Proceedings Act can lie or be instituted before the Statutory Notice has been given and expired".
- "That being the case and there being no notice as required, the suit against the Attorney General cannot lie and the same is struck off with no order as to costs."
- "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."