[2019] KEHC 6316 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

PETITION NO. 14 OF 2019

IN THE MATTER OF ARTICLE 2(4), 33, 35 AND 165(3) (d) (1) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF SECTION 87, 88, 91, 115 AND 117 OF THE COUNTY GOVERNMENT ACT NO 17 OF 2012

AND

IN THE MATTER OF SECTION 102, 117, 125, 128 AND 129 OF THE PUBLIC FINANCE MANAGEMENT ACT NO 18 OF 2012

AND

IN THE MATTER OF SECTION 4, 6, 87, 91 AND 115 OF THE MACHAKOS COUNTY PUBLIC PARTICIPATION ACT OF 2014

AND

IN THE MATTER OF MACHAKOS COUNTY FINANCE ACT, 2019

BETWEEN

JAMES MWAURA............................................................................PETITIONER

VERSUS

COUNTY GOVERNMENT OF

MACHAKOS.............................................................................1STRESPONDENT

COUNTY ASSEMBLY OF MACHAKOS.............................2NDRESPONDENT

DIRECTOR OF FINANCE,

MACHAKOS COUNTY...........................................................3RDRESPONDENT

ATTORNEY GENERAL.........................................................4TH RESPONDENT

RULING

1. This ruling relates to the preliminary objection filed on 13. 05. 2018. This Constitutional Petition is brought by James Mwaura Kiaro said to be engaged in the business of transporting minerals mined from quarries situate in Machakos County to various destinations . It is brought on his behalf by his advocate Muhuhu and Co Advocates and filed on 3rd May, 2019.

2. The petition seeks the following orders:

a)That the Motor Vehicle KCG 853A Tata Lorry be released immediately by the respondents.

b)the Costs of this suit.

3. This petition is supported by the affidavit of the petitioner. On record is an application by the advocates for the petitioner and supported by an affidavit by the petitioner seeking similar orders in the petition.

4. In reply to the petition the 1st and 3rd Respondents have filed a notice of preliminary objection and contended as follows:

a) That the petition is bad in law, lacks merit, the same is premature and an abuse of court process.

b) The petitioner filed a petition and a certificate of urgency without an application accompanying the same

c) Mary Wanjiru Muhuhu who swore the said petition dated 3rd May 2019 is not the petitioner in the aforesaid matter.

d) The deponent of the supporting affidavit dated 3rd May 2019 is not the one who swears the petition.

(e) The petition dated 3rd May 2019 is defective, fundamentally flawed, discloses no reasonable cause of action and is aimed at misleading this honourable court.

(f) The petition dated 3rd May, 2019 ought to be struck out in limine.

5. The objection was canvassed vide submissions. Learned counsel for the petitioner submitted that the mistake on the pleadings can be cured by Article 159(2))(d) of the Constitution and in addition Article 50 obliges the court to hear and determine each case on its merit. Counsel cited the case of Microsoft Corporation v Mitsumi Computer Garage Ltd & Another (2001) eKLR.Counsel urged court that the petition be allowed to go to hearing so that the petitioner’s right to be heard is not extinguished.

6. The 1st and 3rd Respondents counsel in response submitted that the main issue for determination is whether the petition is fatally and mandatorily defective and therefore unmerited and an abuse of the court process. Counsel commenced by defining a preliminary objection as cited in the locus classicus case of Mukisa Biscuits Manufacturing CO Ltd v West End Distributors (1969) EA 696. Counsel submitted that the objection raised a point of law and is merited. Counsel cited the provisions of Rule 4 in the Constitution of Kenya (Protection of Rights and Procedure Rules) 2013 that states who may institute court proceedings and further that Rule 10(2) provides what the contents of the petition should be. Learned counsel cited the case of Anarita Karimi Njeru v A.G. (1979) 1 KLR 154that stated that a petitioner must be specific as to the rights violated and this requirement has not been met by the petitioner. Counsel added that the matters raised in the petition relate to private contractual matters and not constitutional matters and therefore the claim ought to be brought in the appropriate forum. Learned counsel cited the case of Godfrey Paul Okutoyi v Habil Olaka and Another (2015) eKLR.Counsel submitted that the suit offends the provisions of Section 16 of the Government Proceedings Act and it is in the interests of justice that the same be dismissed.

7. The issue to be determined is whether the preliminary objection has merit. A valid preliminary objection must be on a pure point of law. In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, the locus classicuson preliminary objections in this region, Law JA stated:

So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

8. For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit.

9. I have reviewed the record of the pleadings before the court. The thrust of the 1st and 3rd respondent’s objection was that in view of the provisions of Rule 4 in the Constitution of Kenya (Protection of Rights and Procedure Rules) 2013 that states who may institute court proceedings and further that Rule 10(2) of the same rules and considering Section 16 of the Government Proceedings Act and that there is Machakos HC Petition 12 of 2019, the instant petition ought to be dismissed. The said provision material to the suit state as follows;

Rule 4 (1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.

(2) In addition to a person acting in their own interest, court proceedings under sub rule (1) may be instituted by—

(i) A person acting on behalf of another person who cannot act in their own name;

Rule 10 (1) an application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.

(2) The petition shall disclose the following—

(a) The petitioner’s name and address;

(b) The facts relied upon;

(c) The constitutional provision violated;

(d) The nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;

(e) Details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;

(f) The petition shall be signed by the petitioner or the advocate of the petitioner; and

(g)Therelief sought by the petitioner

10. On the first point of objection, it is not clear how the petition is premature and an abuse of court process because the petition has been brought before the court by the petitioner who feels aggrieved. On the 2nd point of objection, there is on record an application filed on 13th May, 2019 in addition to the one filed on 3rd May, 2019. Therefore I am unable to find merit in this ground. On the 3rd and 4th ground, the provisions of Rule 10(2) (f) of the Cited rules are to the effect that (f) the petition shall be signed by the petitioner or the advocate of the petitioner.This means that the said 3rd ground is of no merit because as per the notice of appointment of advocate filed on 3rd May, 2019 by Muhuhu and Co Advocates while Mary Muhuhu signed the petition. The petition is not an affidavit that requires to be sworn by the petitioner. The petition can either be signed by the petitioner or his or her Advocate. However I note that the affidavit has been sworn by the petitioner. The provisions of Order 19 rule 3(1) of the Civil Procedure Rules provides:

"19(3)(1) Affidavits shall be confined to such factsas the deponent is able of his own knowledge to prove, except on interlocutory application, on which statements of his belief may be admitted, provided the grounds thereof are stated."

A reading of the affidavit is indicative that the deponent is the wearer of the proverbial shoe and knows where it pinches. I am unable to find merit in ground 4 of the preliminary objection. It follows that ground 5 and 6 lack merit as well.

11. The 1st and 3rd Respondents counsel’s attempt to bring in grounds in their submissions that is not in their pleadings and the submissions cannot take the place of their pleadings. This include the claim that the petition offends rule 10(2) of the cited rules and further that there is in existence Machakos Petition 12 of 2019 relating to the same subject matter. For argument’s sake, the only aspect of Rule 10(2) that has not been complied with is the failure to cite the constitutional provision that has been contravened. I am aware that the petition must show on the face of it, that interpretation of the Constitution is required and or that it must be specified that a right which is enjoyed by the petitioner is alleged to have been violated. However this is a hurdle that shall be overcome at a later stage for the preliminary objection does not raise this ground. Further the particulars and pleadings in respect of Machakos Petition 12 of 2019 have not been placed before the court and hence the court cannot make a finding on the same.

12. From the above analysis, the grounds raised in the preliminary objection by the 1st and 3rd Respondents cannot dispose of the petition as there is need to determine several facts raised in the petition and accordingly the preliminary objection, cannot be upheld; the same lacks merit and is dismissed.

13. In the result it is my finding that the preliminary objection by the 1st and 3rd Respondents lacks merit. It is ordered dismissed with costs to the Petitioner.

Orders accordingly.

Dated and delivered at Machakos this 26th day of June, 2019.

D.K. KEMEI

JUDGE