https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9079

Muchoki & 2 others v Marugu & 6 others (Judicial Review E006 of 2024) [2026] KEHC 9079 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9079 (KLR) Republic of Kenya In the High Court at Thika Judicial Review E006 of 2024 LN Mugambi, J June 25, 2026 Between Mr. Philp Muchoki 1st Applicant Mr. Joseph Mwaura 2nd Applicant Mrs. Veronica Wangui 3rd Applicant and Mr. George Koine Marugu 1st Respondent Mrs. Mary Njambi Mburu 2nd Respondent Mr. Jackson Mwaura Muchuku 3rd Respondent Mr. Francis Kimuhu 4th Respondent Mr. Aplolo Nderitu Muriithi 5th Respondent The Juja Sub-County Trade Officer 6th Respondent County Attorney, Kiambu County 7th Respondent Ruling 1.The Applicant filed a judicial review Application dated….in which the central issue is a letter issued by the 6th Respondent herein, ( The Juja Sub-County Trade officer) apparently conveying the decision of the Executive Committee Member in charge of Trade Industrialization, Tourism and Investment to the Juja Modern Market Committee that election of the Market Committee Officials were to be held on the 1st week of February, 2024. The Applicants contend that this directive was in direct violation of the Juja Modern Market Committee’ Constitution which stipulated the elections of the Committee would take place after 10 years and the officials who were in office had only done two years, hence had 8 more years to go. The purported election took place on 1.3.2024 and the 1st to 5th Respondents were declared elected officials hence the instant suit. 2.In Response to the Judicial Review Application, the Respondents’ Advocate filed a Notice of Preliminary Objection dated 29/1/2025 that raised the following grounds:i.That the entire suit is bad in law, untenable, incompetent, fatally defective and incurably bad considering the Applicants have deliberately omitted the statutory electoral authorities to obtain the orders through the backdoor. This Honourable Court should not countenance such litigation by ambush, which strikes at the heart of constitutional governance and public administration.ii.That this Honourable Court lacks jurisdiction to determine the legality of elections conducted by statutory authorities who are not before it therefore lacks jurisdiction to hear and determine the instant suit as framed.iii.That the Application is fatally incompetent for non-joinder of necessary and indisputable parties namely: The Municipal Manager- Juja Sub-County; and the Chief Executive Committee Member for Trade, Tourism, Investments & Cooperatives, Kiambu County, The County Government of Kiambu, The Ward Administrator-Juja Ward and Director of Trade and Markets, Kiambu County. These entities and officers constituted the Electoral Board and referees responsible for convening, supervising, regulating, and declaring the impugned elections.iv.That failure to join the electoral authorities renders the proceedings a nullity the failure to enjoin the electoral authorities violates the rule of audi-arteram partem and renders the orders issued a legal nullity.v.That judicial review must be directed at the decision maker not the bystanders the Application is therefore misconceived, misdirected and legally still born,vi.That the Application is a abuse of Court process that constitutes forum manipulation and procedural ambushvii.That judicial review lies strictly against the public body or officer that made the impugned decision and must be directed at the decision maker which was not done.viii.That therefore, the Judicial Review Application ought to be struck out for being fatally incompetent for non-joinder of indispensable parties. Respondents’ Submissions 3.In support in support of the Preliminary objection, the Respondents through their Advocate King’ang’I and Mutahi Advocates filed written submissions 28th May, 2026. 4.Counsel cited the Supreme Court of Kenya decision of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others SCK Petition No 10 of 2013 on definition the Preliminary Objection which the Court reiterated as follows:A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which is 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... 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.” 5.Counsel submitted that the Preliminary Objection dated 29th January, 2025 raises pure points of law touching on jurisdiction, non-joinder of indispensable parties, violation of natural justice and the fundamental architecture of Judicial Review proceedings. The Respondents submit the objection falls squarely within the principles enunciated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 on Preliminary Objection contending that the jurisdictional and procedural defects are apparent on the face of the pleadings and which strike at the very foundation of the proceedings. 6.Counsel, contended that the 1st to 5th Respondents submission is that the instant Judicial Review proceedings are incurably defective, legally untenable and jurisdictionally incompetent since the public authorities and electoral officials responsible for the impugned election were not joined in these proceedings. 7.Accordingly, Counsel identified the issues for determination as follows:I.Whether this honorable court can determine the legality of an election in the absence of the electoral authorities responsible for conducting it.II.Whether failure to join the electoral authorities is fatal to the proceedings.III.Whether the application offends the rule of Audi alteram partem.IV.Who should bear the costs of this Application? 8.On the first issue, Counsel argued that the Applicants seek far reaching Judicial Review orders intended to invalidate, quash and interfere with an election process allegedly conducted under the authority of the County Government of Kiambu through designated electoral officials and committees. Nevertheless, the Applicants omitted to include the institutions that organized, supervised, regulated and declared the election being; the Municipal Manager Juja Sub-County, the Director of Trade and Markets, the Ward Administrator, the Chief Officer in charge of Trade, the County Government of Kiambu and members of the Electoral Board are all absent from these proceedings yet the Applicants seek to challenge the decision while deliberately excluding the decision makers. Counsel argued that Judicial Review remedies are directed against the decision-maker and not against parties who merely participated in or benefited from the impugned process. Counsel argued thus:“… The Applicants invite this Court to determine the legality of an election without the presence of the electoral authorities who conducted it. Such an exercise would amount to a determination in a vacuum. The Court would lack the factual and legal foundation necessary to interrogate the legality of the election process. Consequently, this Court must decline jurisdiction and down its tools…” 9.The Respondents relied on the case of Republic v Independent Electoral and Boundaries Commission (IEBC) & 3 Others Ex Parte Isaac Aluoch Polo Aluochier, where they stated that Court underscored the centrality of the electoral body in any challenge touching on an electoral process. The Court treated the electoral authority as the proper respondent because it was the institution responsible for making and implementing the impugned decision. The Respondents argued that this principle applies in the present matter. 10.Counsel thus argued that the failure to join the electoral authorities is fatal citing Republic v Independent Electoral and Boundaries Commission (IEBC) & 3 Others Ex Parte Isaac Aluoch Polo Aluochier arguing that a challenge on electoral process, nomination process, election outcome, or electoral dispute resolution mechanism must be directed against the electoral body and the actual decision-maker responsible for the impugned decision. 11.Further reliance was placed on the decision of Gladwell Otieno v. IEBC nomination and boundary-related petitions, where the High Court reiterated that the IEBC is a constitutional body corporate capable of suing and being sued in its own name and that liability for decisions made in the course of electoral administration lies first with the Commission as the decision-making entity. The Court proceeded to strike out commissioners who had been improperly sued personally because the challenge ought properly to have been directed against the constitutional body responsible for the impugned acts. The Court held that Judicial Review remedies are directed at the decision-maker and not at parties who merely benefit from a decision. Similarly, in the Aluochier Judicial Review proceedings, the Court examined the actions and jurisdiction of the IEBC Dispute Resolution Committee because that was the body that rendered the impugned determination. 12.The Respondents submitted that the omitted parties are indispensable and necessary parties without whom no effective adjudication can be undertaken. They relied on the Supreme Court in Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others where the Court held that a necessary party is one whose presence is indispensable for the complete and effectual determination of all questions before the Court. Similarly, the Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55, where the Court held that a necessary party is one without whom the Court cannot effectively and completely adjudicate upon the issues before it. Counsel argued that the omitted officials are the custodians of every material fact relating to the disputed election and without them, the Court cannot determine: Who convened the election, who prepared and verified the register, who supervised the voting process, who counted the votes, who declared the results, what regulations governed the election and whether the procedure adopted complied with the law else it would be a matter of speculation in the absence of explanation from the said officials. 13.On the breach of natural justice, Counsel cited Article 50(1) of the Constitution which provides thus“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body, ” and Article 47 which guarantees fair administrative action and argued that the Applicants seek orders that would effectively condemn the conduct of public officers and invalidate decisions made by public authorities who have not been heard which is a direct affront to the cardinal rule of natural justice. Counsel relied on Onyango Oloo v Attorney General [1986-1989] EA 456, and Pashito Holdings Ltd v Paul Nderitu Ndungu & Others [1997] eKLR, where in both decisions, it was held that no person should be condemned unheard stating that the Electoral Board and County officials whose conduct is under attack have not been joined yet the Applicants seek orders nullifying their actions. 14.The Respondents submitted that this is not a mere procedural issue that that can be salvaged under Article 159(2)(d) of the Constitution and relied on The Supreme Court case of Raila Odinga & Others v IEBC & Others [2013] eKLR where it was held that Article 159 is not a magic wand capable of curing every defect. Further, the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court held that Article 159 was never intended to overthrow established principles of procedure and jurisdiction. 15.The Respondents argued that these flaws point at an attempt to unprocedurally obtain Court orders and cited the Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR where it was held that abuse of court process includes proceedings that are frivolous, oppressive, and vexatious or intended to achieve collateral advantages outside legitimate litigation insisting that the present proceedings fit squarely within the said description as the Applicants seek to invalidate an election while ensuring that those who conducted it remain outside the proceedings. 16.Counsel argued that once the matter is dismissed on the basis that the Application is unjustifiable and malicious, Section 27 of the Civil Procedure Act, provides that costs follow event and urged that the Applicant should be condemned to pay the costs. Applicants’ submissions 17.The Applicant countered that all the seven grounds raised by the Respondents revolve around issues of facts as opposed to issues of law and can therefore be determined on the basis of evidence adduced before the court as no single section of the law has been cited. 18.The Applicant submitted that Respondents seek dismissal of their case for failure to include certain persons who according to the Respondents were the ones that conducted the election which argument the Applicant contends is misplaced citing their specific prayer in the motion which reads as follows:“The court do hereby call and quash the decision of the 6th and 7th Respondents of 1.3.2024 which declared the JS' to 5th Respondents elected” 19.The Applicants contended that they were clear as to the persons they were suing and the reasons for the same and were thus served with pleadings and maintained that the persons referred to by the Respondents did not participate in the impugned elections. The Applicants argued that no material was tendered before this Court showing how the persons the Respondent had mentioned participated in the impugned elections. 20.Citing the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Counsel argued that all the points raised in this Preliminary Objection are factual contestations requiring evidence and Judicial discretion of the Judge are not a pure Preliminary Objections in law. Others case relied on in to support this position include: Simon Kariuki v Geoffrey Muhoro (2014) eKLR ; 'National Bank of Kenya v Peter J Kipkoech and Another (2005) eKLR and William Kiprono Towett & 1597 others v Farmland Aviation (2016) eKLR' the Court of Appeal dismissed the preliminary objection with costs to the Plaintiff holding: 'We are of the considered view that the preliminary objection did not raise any pure point of law. 21.The Applicants concluded by contending that what was before the court were grounds of opposition disguised as a preliminary objection as they are issues calling for evidential proof which can only be availed at a full hearing of the matter. Analysis and Determination 22.Having regard to the submissions of learned Counsel, this Honourable Court finds only one issue falls for determination: whether the instant Preliminary Objection raised in this matter is meritorious. 23.The threshold of a preliminary objection was established in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69. The principle was articulated and adopted by the Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR where the Court held as follows:“(31)To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696: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….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”. 24.Further, in the case of Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR the Court expressed itself as follows on what constitutes a preliminary objection:“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.” 25.On the utility of raising preliminary objections in the administration of justice, the Supreme Court in the Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) explained thus:“21.The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…” 26.Having regard to the foregoing authorities, this Court opines a proper Preliminary Objection is one that is characterized by the following four characteristics:a.a preliminary objection, argued successfully should be capable of disposing of the whole suit.b.It is argued on the assumption that all the facts pleaded by the other side are correctc.It cannot be raised if any fact has to be ascertained by evidenced.It cannot be raised if what is sought is the exercise of judicial discretion. 27.The therefore becomes, does the instant Preliminary Objection satisfy the threshold of a proper Preliminary Objection? 28.A careful examination of the Preliminary Objection raised by the Respondents discloses that the fundamental issue that the Respondents Preliminary Objection is predicated is that the Applicants omitted to include the institutions that organized, supervised, regulated and declared the election being; the Municipal Manager Juja Sub-County, the Director of Trade and Markets, the Ward Administrator, the Chief Officer in charge of Trade, the County Government of Kiambu and members of the Electoral Board. In other words, the issue that comes out as the foundation of the Petition is non-joinder of parties the Respondents refer to as ‘indispensable and necessary parties.’ 29.The Applicants maintained that they sued all those that were necessary for purposes of claiming the reliefs set out in the Application. 30.It is the considered view of this Court that the response by the Applicants introduces a contested fact, that is whether the omitted institutions and persons played any significant role to be joined as necessary in the suit. Determining whether they played material role impugned is factual dispute to be resolved by evidence and not a pure legal issue, hence is outside the scope of a Preliminary Objection. 31.In addition, it is clearly stipulated under order 1 Rule 9 of the Civil Procedure Rules that“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 32.Indeed, under Order 1 Rule 10, the Court is empowered to strike out a Party who may have been wrongly joined or add a necessary party who might have been omitted. As a matter of fact, a Party can with leave of the Court upon application amend a pleading to include a Party that could have been excluded or remove one that has been wrongly joined. This power is exercised by the Court discretionary. Non-joinder or misjoinder it thus a matter within the Court’s exercise of discretion hence is outside the ambit of a Preliminary Objection. 33.I am fortified by the findings of the Court of Appeal in William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others [2016] KECA 301 (KLR), where addressing a related issue, the Court held thus:“Even if for a moment, and for arguments sake, we were to take the subject of misjoinder as a pure point of law, the veracity of the respondent’s pleadings in this regard cannot be vouched for in the absence of a trial. Most critically Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. We reproduce the same hereunder: -“9 No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it” 34.The upshot is that this Court finds no merit in the instant Preliminary Objection which I hereby dismiss. 35.Costs shall be in the cause. RULING DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE, 2026.L.N. MUGAMBIJUDGE