[2023] KEHC 25778 (KLR)

Juma v Sifuna & another (Civil Case E041 of 2023) [2023] KEHC 25778 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25778 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case E041 of 2023

DKN Magare, J

November 21, 2023

Between

Joselyne Nasambu Juma alias Joselyne Nasambu Sifuna

Plaintiff

and

David Kinisu Sifuna

1st Defendant

Nelson Muturi Dumbeyia

2nd Defendant

Ruling

1. The Plaintiff filed suit claiming the following prayers: -a.A declaration that the 1st and 2nd Defendants action in dealing and/or transacting in respect the property known as CR No. 30253 sub division Number 9961 (Original Number 9619/7) Section 1 (Mainland North without the Plaintiff’s authority and consent is illegal number and void ab initio.b.An order of permanent injunction to restrain the 1st and 2nd defendants in selling disposing or in any way dealing with property known as CR No. 30253 sub division Number 9967 (Original 9619/7 Section I Mainland contrary to the law.c.An order bringing to court and quashing an unauthorised, illegal, fraudulent, unlawful, unwarranted undertaking dated 14/2/2024 between the 1st and 2nd Defendant.

2. Simultaneous with that the plaintiff filed a certificate of urgency dated 29/5/2023. The plaintiff was seeking injunctive orders.

3. The Respondent filed a preliminary objection and fence. The preliminary objection is humongous and had 11 od grounds. The preliminary objection, is only on point of laws. The same cannot be repeated herein since they are prolixoius and unseemly three pages of argumentative postulations.

4. I have perused the preliminary objection and note that only the 11 preliminary objection is a matter of law. and convinced the court to strike out pleading on basis of repealed law.

5. The Court eschews facts and is not involved in any fact finding. It is of course not blind to the facts. The court is not to make findings of fact. The court cannot camouflage lack of jurisdiction by characterizing a case a mixed question of fact or law.

6. The second defendant raised a preliminary objection on jurisdiction of the court. There are other points of law but they are not succinct. They are prolixious and a waste of judicial time. A preliminary Objection is what the English common law used to call a demurrer. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd [1969] E.A. 696, made the following holding: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuses issues. This improper practice should stop".

7. In the case of Hammers Incorporation Co. Ltd Versus The Board Of Trustees Of The Cashewnut Industry Development Trust Fund, the court of Appeal (Rutakangwa, N. P. Kimaro and S. S. Kadage JJA), sitting in Dar es salaam stated as doth: -“It was hoping against hope. We believe that had that Court survived to this day it would have issued a sterner warning. This is because the "improper practice" never stopped. Neither did it ebb away. On the contrary, it is on the increase. This forced the Full Bench of this Court in Karata Ernest & Others V The Attorney General, Civil Revision No. 10 of 2010 (unreported) to mildly urge all parties in judicial proceedings to pay heed to what was aptly pronounced in the mukisa biscuit case (supra). The late call appears to be falling on deaf ears as this ruling will demonstrate.”

8. I recall Justice prof J.B. Ojwang J (as he then was) addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR: -“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

9. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, justice Kiarie Waweru Kiarie, while reminiscing on the question of preliminary Objection was of the view that: -“A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:....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. At page 701 paragraph B-C Sir Charles Newbold, P. added the following:A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”

10. I decry a situation where parties write profuse number of pages raising issues that are essentially matters of fact. The parties must attempt to deal with preliminary objections only with the constitution, plaints and the statutes. If there is need for an affidavit, then order 2 rule 15 is ideal. Parties should never disguise matters of law as submissions. If one needs to file grounds of objection, affidavits or supplementary affidavits, then it is a matter of fact.

11. This is the point where the court must confess, I have not read any of the affidavits filed, except the verifying affidavit. This is for a good reason. I am not handling an application. I warned parties that submissions and affidavits have no place in matters of this nature. I have noted from pleadings there could have been proceedings in a court. This does not concern the court while handling a preliminary objection.

12. The question of res judicata is a matter of evidence. That evidence must be introduced by oath. The question whether or not the plaintiff is a spouse of any of the parties is not a matter of law. It is factual. Unless admitted in the plaint, it is not a point of law. It cannot be a basis for a preliminary objection. A preliminary objection must be preliminary. It is not indebt but based on legal challenge to the suit.

13. It is my considered view that a preliminary objection must be based on current law, and be factual in its constitution. It cannot be based on disputed facts or fats requiring further enquiry. In determining a preliminary objection therefore only 3 documents are required in addition to the constitution. The impugned law, the plaint and preliminary objection. If the court is invited to refer to the defence, unless that is where the objection is premised, then the preliminary objection is untenable.

14. From the foregoing, it is clear that preliminary objections numbers 1 – 10 are on points of fact. I have no way of confirming the same without delving into fact. Indeed an issue of res judicata and res subjudice are matters of fact. The court must find that a suit offends as a fact, sections 6 or 7 of the Civil procedure Act. Therefore, there is merit in the first 10 objections. The same are dismissed in limine.

15. The only point of law is ground 11. The same states as follows: -,a.The high court has no jurisdiction to entertain the subject matters herein, spousal consent.

16. From the foregoing, the court has to establish weather that the matters raised in the plaint, are within the purview of Article 162 (2) of theConstitution, which provides that: -“162. System of courts1. The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).2. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land. (3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).

17. The high court is forbidden from hearing matters in the exclusive domain of courts of equal status Article 165(5) provides as doth: -“The High Court shall not have jurisdiction in respect of matters—(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)falling within the jurisdiction of the courts contemplated in Article 162 (2)

18. The question this court will ask itself is this what is the subject matter of this case. This will be answered from the pleadings. It is a transaction over land known as CR No. 30253 sub division No 9967 (Original Number 9619/7).

19. The same is a subject of the sale agreement between the defendants. It is not a dispute over ownership of land. This court does not have jurisdiction to deal with matters in issue.

20. What then do I do with this case. The case must be one with issues cutting across both courts to be heard in the high court. However, if it is purely land matters this court has no jurisdiction. I note that the 1st defendant and the plaintiff have no dispute. There is no question regarding matrimonial property with the 2nd defendant. There is no missed questions of jurisdiction. It is a pure land matter.

21. In the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as then he was stated as follows: -“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that whatI have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order..”

22. The end result is that once you have no jurisdiction, your pen must retire. It does in this matter. I have it on good authority that jurisdiction cannot be conferred by consent or by craft. The Plaintiff knew the and court existed and chose the high court. The land and environment court has been around for over 10 years. It will be unfair to send a party to a court they do not wish to go to. In the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR the Court of Appeal, Karanja, Gatembu & Sichale, Jj.a, stated as doth: -“12. The application fell for determination before the learned Judge (Lesiit, J.) who in a Ruling rendered on 8th August, 2008 found inter alia that S.18 of the Civil Procedure Act was in pari materia to Section 24 of the Indian Civil Procedure Code and cited the learned editor of Mulla on the Code of Civil Procedure (Act V OF 1908), 13th Edition, that;“4. Jurisdiction. An order for the transfer of a suit from one court to another cannot be made under this section unless the suit has been in the first instance brought in a court that has jurisdiction to try it. But, if after the transfer is made, the parties without objection join issue and go to trial upon the merits, the order of transfer cannot subsequently be impeached.”The above was the position adopted by this Court in Nyadundo Primary School & Another v. Stephen Waweru CA No. 179 of 1999 (unreported) where the Court held that even where the suit was instituted in a court without jurisdiction, the High Court could transfer it to itself if the parties consent or where the competence of the suit is not questioned. In the above suit, Kwach, JA expressed himself as follows:-“The order of transfer was apparently made by consent, but had the application by the Plaintiff been contested the learned Judge would have had to decide whether the suit ought to be transferred was incompetent or not for lack of jurisdiction. If the competency of the suit had been questioned, it would have become obvious to the learned Judge that the suit before the Resident Magistrate’s Court was incompetent and he would most probably have declined to make the order for transfer but since the order was made by consent and without the benefit of argument, I am satisfied that the Judge had power to transfer the suit to the High Court this latent defect notwithstanding.”

23. In the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR in the court stated as doth; -“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S.18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign, It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same.…In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.”

24. In any case without jurisdiction, the court has no power to transfer. The case of Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, the high court (four judges P. Nyamweya, prof J. Ngugi, B. T. Jaden and J. M. Mativo, as they were then, set the test by stating as doth:-“105. Subsequent to the above decisions, our Courts have identified the correct approach to determine the appropriate superior Court to hear such hybrid cases. The Courts have resolved the issue by inquiring what the most substantial question or issue presented in the controversy is. For example in Suzanne Butler & 4 Others v Redhill Investments & Another[52] the Court stated the test in the following words:“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue."

25. Consequently, this matter is improperly before the Court. This Court can only transfer a matter when there are pre dominant issues. In this matter the are no predominant issue. The same is therefore struck out with costs of Ksh. 220,000/= to the 2nd defendant. The interim orders granted are hereby vacated. The costs will be paid by the Plaintiff who appears to be a pawn and the substantive plaintiff is in fact the 1st Defendant.

Determination 26. The upshot of the foregoing is that the Court makes the following orders:-a.The Court lacks jurisdiction to handle this matter.b.The entire case is struck out with costs of Kshs, 220,000/=.c.Interim orders are vacated.d.The 1st defendant and the Plaintiff to bear costs jointly and severally having supported the suit.e.The costs are Payable within 30 days in default execution to issue.f.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE