[2024] KEHC 16328 (KLR)

Muvengei v Muhindi (Civil Appeal 227 of 2023) [2024] KEHC 16328 (KLR) (18 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16328 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Appeal 227 of 2023

H Namisi, J

December 18, 2024

Between

Onesmus Mutuku Muvengei

Appellant

and

Isaiah Ngarariga Muhindi

Respondent

(Being an appeal from the Ruling of the Chief Magistrate’s Court at Thika delivered on 9 May 2023 by Hon. S. Atambo in CMCC No. E176 of 2022)

Ruling

1. By Plaint dated 30 March 2022, the Appellant herein commenced proceedings in the lower court seeking judgement against the Respondent in the following terms:i.Kshs 351,095/=;ii.Interest on (i) above at court rates from the date of filing the suit until payment in full;iii.Costsiv.Any other relief this court may deem fit and just to grant

2. The Respondent raised a preliminary objection, seeking to have the Plaint struck out, on the following grounds:i.The Verifying Affidavit accompanying the Plaint is not in compliance with section 5 of the Oaths and Statutory Declarations Act;ii.The suit thus offends the mandatory provisions of Order 4 Rule 1(3) of the civil Procedure Rules;

3. The trial court considered the Preliminary Objection and delivered its Ruling upholding the objection. The Appellant’s suit was thus dismissed with costs to the Respondent.

4. Aggrieved by the Ruling, the Appellant lodged this appeal on the following grounds:i.That the learned trial Magistrate erred in law and in fact in striking out the Plaintiff’s suit solely on the ground that the Verifying Affidavit was not commissioned;ii.That the learned trial Magistrate erred in law and in fact in failing to find that failure to file a commission Verifying Affidavit is a curable procedural technicality which should not warrant the draconian measure of striking out the entire suit;iii.That the learned trial Magistrate erred in law and in fact in failing to appreciate that in an attempt to cure the mistake of filing a defective Verifying Affidavit, the Plaintiff had together with the Reply to Defence, a commissioned Verifying Affidavit which the Honourable court ought to have considered and admitted as being properly on record;iv.That the learned trial Magistrate erred in law and in fact in disregarding the Appellant’s submissions and judicial authorities which emphasised on the need to uphold substantive justice by sustaining the suit rather than dismissing the entire suit due to procedural flaws.

5. By Notice dated 11 December 2023, the Respondent raised a Preliminary Objection on the following grounds:i.That the appeal is incompetent and fatally defective in view of the provisions of section 75 (2) of the Civil Procedure Act and order 43 Rule 1 (2) of the Civil Procedure Rules;ii.That in view of ground (i) above, this Court is not seized of the jurisdiction to entertain the appeal.

6. Parties canvassed the Preliminary Objection by way of written submissions.

The Respondent’s Submissions 7. The Respondent submitted that the order of the trial court is not appealable as of right and that the Appellant required leave to appeal. The Respondent relied on the cases of Harambee SACCO Society Ltd -vs- Lawrence Njagi Mbungu & 2 Others [2016] eKLR, Nyutu Agrovet Ltd -vs- Airtel Networks Ltd {2015] eKLR and Kakuta Maimai Hamisi -vs- Peris Tobiko & Others, Civil Appeal No. 154 of 2013.

8. It was the Respondent’s contention that section 75(1) of the Civil Procedure Act does not confer the Appellant an automatic right of appeal. They argued that the only respite would be if the rules conferred the right by dint of section 75 (1) (h). The Respondent submitted that since the Appellant does not and did not have an automatic right of appeal, then failure by the Appellant to seek leave deprives this Court of the jurisdiction to entertain this appeal.

Appellant’s Submissions 9. In response, the Appellant filed submissions that centred on the point that the appeal fell within the ambit of Order 43 of the Civil Procedure Rules, in the sense that the appeal related to Order 3 on frame and institution of suit, and Order 19 on Affidavits. The Appellant did not refer to any authorities.

Analysis and Determination 10. I have read the Preliminary Objection and the Submissions filed by the parties herein. The primary issue for determination is whether the Notice of Preliminary Objection has merit.

11. The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held 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 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”.

12. The Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR made the following observation as relates 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. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”

13. The legal threshold for a preliminary objection to lie is well settled. Gikonyo J in Catherine Kawira v Muriungi Kirigia [2016] eKLR put it succinctly thus;“(5)I do not want to reinvent the wheel on the legal threshold for Preliminary Objection. It is now well-settled principle that a preliminary objection should be a point of law that is straight-forward and not obscured in factual details for it to be proved. Again, it must be potent enough to decimate the entire suit or application. On this I am content to cite the case of Mukisa Biscuit Manufacturing Company Limited V West End Distributors Limited (1969) EA 696 where it was stated as follows:“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.”

14. In the instant appeal, the Appellant seeks appeal the subordinate court’s ruling dated 9 May 2023 which upheld a preliminary objection raised on the grounds that the suit in the trial court offended the mandatory provisions of Order 4 Rule 1 (2) of the Civil Procedure Rules. The appeal elicited a preliminary objection on ground that the court has no jurisdiction to entertain the appeal as the Applicant failed to seek leave of this court in line with Order 43 of the Civil Procedure Rules.

15. Going by the law as settled above and on the material before court, the preliminary objection raised herein is on the face of it a pure point of the law capable of finally disposing the application before the court. It is argued that the intended Appeal is not one that lies as a matter of right but one that requires leave of court to be sought and granted.

16. With respect to the orders from which appeals lie, Section 75 of the Civil Procedure Act provides as follows:(1)An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—(a)an order superseding an arbitration where the award has not been completed within the period allowed by the court;(b)an order on an award stated in the form of a special case;(c)an order modifying or correcting an award;(d)an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;(e)an order filing or refusing to file an award in an arbitration without the intervention of the court;(f)an order under section 64;(g)an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;(h)any order made under rules from which an appeal is expressly allowed by rules.(2)No appeal shall lie from any order passed in appeal under this section.(emphasis mine)

17. On the other hand, Order 43 of the Civil Procedure Rules lists those orders from which appeals would lie as a matter of right, as follows:(1)An appeal shall lie as of right from the following Orders and rules under the provisions of section 75(1)(h) of the Act—(a)Order 1 (parties to suits);(b)Order 2 (pleadings generally);(c)Order 3 (frame and institution of suit);(d)Order 4, rule 9 (return of plaint);(e)Order 7, rule 12 (exclusion of counterclaim);(f)Order 8 (amendment of pleadings);(g)Order 10, rule 11 (setting aside judgment in default of appearance);(h)Order 12, rule 7 (setting aside judgment or dismissal for non-attendance);(i)Order 15, rules 10, 12 and 18 (sanctions against witnesses and parties in certain cases);(j)Order 19 (affidavits);(k)Order 22, rules 25, 57, 61(3) and 73 (orders in execution);(l)Order 23, rule 7 (trial of claim of third person in attachment of debts);(m)Order 24, rules 5, 6 and 7 (legal representatives);(n)Order 25, rule 5 (compromise of a suit);(o)Order 26, rules 1 and 5(2) (security for costs);(p)Order 27, rules 3 and 10 (payment into court and tender);q)Order 28, rule 4 (orders in proceedings against the Government);(r)Order 34 (interpleader);(s)Order 36, rules 5, 7 and 10 (summary procedure);(t)Order 39, rules 2, 4 and 6 (furnishing security);(u)Order 40, rules 1, 2, 3,7 and 11 (temporary injunctions);(v)Order 41, rules 1 and 4 (receivers);(w)Order 42, rules 3, 14, 21, 23 and 35 (appeals);(x)Order 45, rule 3 (application for review);(y)Order 50, rule 6 (enlargement of time);(z)Order 52, rules 4, 5, 6 and 7 (advocates);(aa)Order 53 (judicial review orders).

18. It is the Appellant’s contention that the appeal emanates from a ruling made under Order 3 rule 2 and Order 4 rule 1 (2) of the Civil Procedure Rules. Order 3 Rule 2 provides for the documents to accompany a suit, which include (a) the affidavit referred to under Order 4 rule1(2). Order 4 rule 1 (2) provides as follows:The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.

19. It is clear from the foregoing that there is some overlap in the provisions. Whereas orders emanating from Order 4 Rule 1(2) do not enjoy an automatic right of appeal, those emanating from Order 3 do. Although the Respondent’s preliminary objection in the trial court was raised on the basis that the Plaint offended the provisions of Order 4 rule 1 (2), this provision is the subject of Order 3 rule 2. For that reason, I am satisfied that an appeal therefrom would lie as a matter of right as provided in Order 43.

20. In light of the above, this court finds that the preliminary objection is without merit and is consequently overruled with costs to the Appellant.

DATED AND DELIVERED AT NAIROBI THIS 18 DAY OF DECEMBER 2024HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Ms. Njeri h/b Kiugu .............for the Appellant..Mutua ....................for the Respondent