[2022] KEHC 380 (KLR)

Njeru v Chairman (Law Society of Kenya) & 2 others (Petition 2“A” of 2017) [2022] KEHC 380 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 380 (KLR)

Republic of Kenya

In the High Court at Embu

Petition 2“A” of 2017

LM Njuguna, J

May 11, 2022

(Formerly Petition No. 416 Of 2017 (Nairobi)

Between

Andrew Ireri Njeru

Petitioner

and

Chairman (Law Society of Kenya)

1st Respondent

Chief Magistrate Hon. Maxwell Gicheru

2nd Respondent

Attorney General

3rd Respondent

Ruling

1. The matter for determination is the notice of preliminary objection dated 18. 12. 2017 brought by the 1st respondent on the grounds that:i)The notice of motion and the petition are not founded on the mandatory provisions of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules.ii)The Notice of Motion and the Petition dated 25. 08. 2017 are wanting in both form, structure and substance and the prayers sought therein cannot be practically granted as repealed law has been invoked.iii)The petition does not lie in law or otherwise and is a nonstarter, bad in law, fatal and incurably defective, thence, the 1st respondent herein shall urge and pray the Honourable court that the petition be struck out in limine.iv)The petition is frivolous, vexatious and an abuse of the court process.

2. The notice of preliminary objection was canvassed by way of written submissions. The 1st respondent submitted that rules of procedure are put in place for a reason and the reason is for standard and uniformity in the way the Honorable Court is approached. That the Mutunga Rules are well known to form the foundation of any petition. That in as much as the petitioner is a lay person and unrepresented by an advocate, this court was urged to uphold adherence of the rules in that the petitioner herein seeks to do exactly what an advocate does albeit without going through the rigours of the many years of persistent study and training at a law school. The 1st respondent further submitted that prayers sought by the petitioner are untenable as they do not exist and/or known in law; that this court cannot issue orders that cannot be implemented. That the prayers are not clear and are improperly framed and further that, this court cannot legally direct the Attorney General and neither can the Attorney General direct the Law Society of Kenya. It was his case that the practice of law cannot be done and/or allowed under the disguise of exercise of fundamental human rights under the bill of rights; and in the end, it was prayed that the petition should fail.

3. The 2nd and 3rd respondents submitted that the petition is incurably defective and bad in law since it is now a settled principle that a petitioner in a constitutional petition must plead his case with a reasonable precision to enable the court as well as the respondents to understand clearly and appreciate the complainant’s constitutional issues. That the petitioner must with reasonable precision state the specific provisions of the constitution and the rights allegedly violated and the petitioner must also state the manner of infringement. Reliance was made on the case of Anarita Karimi Njeru v Republic (1976 – 1980) KLR 1272. Further that, the prayers sought by the petitioner are untenable since the petitioner has failed to establish the three pillars that uphold an application for an injunction. Reliance was made on the case of Kenleb Cons Ltd v New Gatitu Service Station Ltd & another (1990) eKLR.

4. That in regards to conservatory orders sought, it was submitted that the petitioner has not shown to the satisfaction of the court that his rights have been violated to warrant the issuance of a conservatory order. Reliance was made on the case of Centre for rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 Others (2007) eKLR. In the end, the respondent contended that the petitioner has not discharged the burden of drafting of a petition in reference to the laid down procedures in the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

5. The petitioner on the other hand submitted that the preliminary objection should be struck out since the 1st respondent failed to meet the requirements of a preliminary objection.

6. The Court has carefully read and considered the notice of preliminary objection, the written submissions and the pleadings in general and finds that the issue for determination is whether the notice of preliminary objection is merited.

7. A Preliminary Objection was clearly defined in the case ofI.N. & 5 others v Board of Management St G. School Nairobi & another(2017) eKLR where it was stated:-“Definition of a preliminary objection7. I find it necessary to define what constitutes a preliminary objection on a point of law. A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.8. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence. Understanding the nature and scope of preliminary objections is very important for practicing lawyers. Knowing how to raise a properly formulated preliminary objection, and when to raise it, can save a lot of time and costs.

8. Discussing what constitutes a preliminary objection, Law JA in Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd said:-“...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection 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."10. In the words of Sir Charles Newbold P at page 701, B:-“...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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”

9. In the same vein, the decision in Omondi v National Bank of Kenya Ltd & Otherswhere it was held that:-“…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts…"

10. Thus, 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.

11. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.

12. In the instant case, are the grounds raised by the 1st respondent herein qualify to be a preliminary objection in relation to the circumstances herein?

13. The court has considered the preliminary objection and the submissions by the parties herein. The 1st respondent avers that the petition is a non-starter, bad in law and the same is incurably defective and it should be struck out.

14. On whether the petition is bad in law and incurably defective, Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 prescribe the form and requisites of a petition as follows;1)The petitioner’s name;2)Facts relied upon;3)The constitutional provisions violated;4)The nature of injury caused or likely to be caused to the petitioner or person in whose name the petition has been instituted; or in a public interest case to the public class of persons or community;5)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;6)The petition shall be signed by the petitioner or the advocate of the petitioner; and7)The relief sought by the petitioner.

15. In the case of Edward Mwaniki Gaturu & another vs Hon. AG & 3 others [2013] eKLR, the court held;“I am aware that this court has consistently held that where a violation of the constitution has been alleged, an aggrieved party must set out with some degree of precision the manner in which the provisions of the constitution have been violated. (See Anarita Karimi Njeru Vs Republic (1976 – 1980) 1 KLR 1272).

16. The position has been clarified in the case of Trusted Society of Human Rights Alliance vs AG & 2 others, Petition No. 229 of 2012 where the judges expressed themselves as follows;“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication; a person claiming constitutional infringement must give sufficient notice of the violation, to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies.

17. However, we are of the opinion that the proper test under the new constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged.

18. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismatic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquire whether the complaint against respondents in a constitutional petition are fashioned in way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case.

19. The petitioner herein has sought the following orders in his petition;a)An order for a declaration of right injunction to protect the supremacy of the Constitution of Kenya that nobody or state officer will enter to entertain or abuse the Constitution of Kenya.b)A conservatory order do and hereby issued under Article 23 (3)(a)(b) and (c) of { the Constitution of Kenya on the matter and an order directing the AG to advise the 1st respondent to repeal Section 33 (1); 34(1), 55 and Section 85(1) of the Advocates Act Cap. 16; and for the purpose of Article 22 clause (2) and (3) of the Constitution.

20. With regard to prayer (a) the principles of injunctions as enunciated in the case of Giella vs Cassman Brown [1973] EA 358 and reiterated in the case ofNguruman LimitedvsBonde Nielsen & 2 others CA 77 of 2012 [2014] eKLR have not been established by the petitioner herein. He has not illustrated a prima facie case, a balance of probability or irreparable harm that will befall him if the orders are not granted. In any event, the constitution itself in Article 2 proclaims its own supremacy as follows;2(1) This constitution is the supreme law of the republic and binds all persons and all state organs at both levels of government.”

21. On prayer (b) it is not clear the orders that the petitioner is seeking. The orders as framed are not clear and if issued as prayed are incapable of implementation. The record shows that at some point, the petitioner had sought leave to amend his petition and upon the court granting the leave as sought, he later informed the court that he did not wish to amend the petition. This decision was to his detriment.

22. It is trite that a party is bound by its pleadings. (See the case of Daniel Otieno Migore vs South Nyanza Sugar Co. Ltd.[2018] eKLR.)

23. Similarly, in the case of Independent Electoral and Boundaries Commission & another vs Stephe Mutinda Mule & 3 others [2014] eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs Nigeria Breweries PLC SC 91 of 2002, where the court held;“….It is now trite principle in law that parties are bound by their pleadings and that my evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded….….In fact that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no apportioning is given to the other party to meet the new situation”.

24. In the end, it is my considered view that the pleadings do not disclose any cause of action and the prayers sought are not clear. I hereby strike out the petition.

25. No order is made on costs.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11 TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………… for the Petitioner……………………………………for the Respondents