[2024] KEHC 4007 (KLR)
The court found that the preliminary objection raised both issues of fact and law, and that to arrive at a fair decision, some facts would need to be ascertained. As a result, the objection did not meet the threshold for a preliminary objection as set out in Mukisa Biscuits, which requires that such objections raise...
Source-derived case information.
- Citation
- [2024] KEHC 4007 (KLR)
- Parties
- Applicant: David Kerario Marwa t/a Kerario Marwa & Company Advocates; Respondent: Principal Magistrate’s Court, Ndhiwa; Respondent: Registrar Magistrates Court; Respondent: Chief Registrar of the Judiciary
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 1 of 2024
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- KW Kiarie
- Legal Topics
- Judicial Immunity, Abuse of Process, Proper Parties, Preliminary Objection, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kerario Marwa t/a Kerario Marwa & Company Advocates
Applicant
Principal Magistrate’s Court, Ndhiwa
Respondent
Registrar Magistrates Court
Respondent
Chief Registrar of the Judiciary
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a constitutional petition can be used to challenge a judicial decision where a statutory right of appeal exists.
- 2 Whether naming a court as a respondent in a constitutional petition is proper under Kenyan law.
- 3 Whether the doctrine of judicial immunity bars the suit against the presiding magistrate.
Ratio Decidendi
The court found that the preliminary objection raised both issues of fact and law, and that to arrive at a fair decision, some facts would need to be ascertained. As a result, the objection did not meet the threshold for a preliminary objection as set out in Mukisa Biscuits, which requires that such objections raise only pure points of law. The court therefore dismissed the preliminary objection, holding that it could not be sustained in the circumstances.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs shall abide by the outcome of the petition.
Full Case Text
Judgment text and source record
23 paragraphs
David Kerario Marwa t/a Kerario Marwa & Company Advocates v Principal Magistrate’s Court, Ndhiwa & 2 others (Constitutional Petition 1 of 2024) [2024] KEHC 4007 (KLR) (25 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4007 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Constitutional Petition 1 of 2024
KW Kiarie, J
April 25, 2024
Between
David Kerario Marwa t/a Kerario Marwa & Company Advocates
Appellant
and
Principal Magistrate’s Court, Ndhiwa
1st Respondent
Registrar Magistrates Court
2nd Respondent
Chief Registrar of the Judiciary
3rd Respondent
Ruling
1. The respondents herein filed a Notice of Preliminary Objection dated the 17th day of January 2024. It was based on the following grounds:a.It is crucial to understand that a dissatisfied party with a judicial decision or order of a court of law can only challenge that decision or order through an application for review before the same court or an appeal to a higher court, with the other party being named as the respondent. This is the correct legal process, not through a constitutional petition naming the court as a respondent.b.Naming the court, a respondent in a constitutional petition invites the court to appear and defend its decision or order before another court in a manner that is incompatible with our adversarial and hierarchical judicial system, where disputes are between the parties who come to court, and the errors of one court can be corrected by a higher court on appeal.c.There exists a statutory right of appeal against the decision of the 1st respondent, and the grounds raised by the petitioner can be raised and addressed by that appeal.d.The petition is incompetent and a clear abuse of the court process. It is a collateral challenge to a merited judicial decision in Ndhiwa MCCC No.54 of 2017, dated and delivered on 27/4/2022, disguised as a constitutional petition.e.The suit offends the doctrine of judicial immunity of the presiding magistrate, who enjoys immunity from being sued over actions done in good faith in the discharge of judicial functions.
2. The preliminary objection was opposed on the following grounds:a.That the preliminary objection is baseless.b.That the issues raised do not fall within the purview of preliminary objection.1. A preliminary objection raises purely issues of law. The Court of Appeal in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited (1969) EA. 696 (Sir Charles Newbold P) observed as follows:... 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 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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.
4. Upon my perusal of the preliminary objection and the submissions by the parties, I find that both issues of fact and law have been raised. To arrive at a fair decision, some facts must be ascertained.
5. I, therefore, find that the preliminary objection cannot be sustained. The same is dismissed. Costs shall abide by the outcome of the petition.
DELIVERED AND SIGNED AT HOMA BAY THIS 25TH DAY OF APRIL 2024KIARIE WAWERU KIARIEJUDGE.