[2023] KEHC 26583 (KLR)

Obiero & 3 others v Kwanza Estates Limited (Civil Appeal E087 of 2022) [2023] KEHC 26583 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26583 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal E087 of 2022

DKN Magare, J

December 8, 2023

Between

Dan Obiero

1st Appellant

Hillary Kitur

2nd Appellant

Hellen Cherono

3rd Appellant

Everline Ashilund

4th Appellant

and

Kwanza Estates Limited

Respondent

Ruling

1. The Appellant filed a notice of preliminary objection in the following terms:-1. That the appeal and the applications dated October 25, 2022 and October 27, 2022 are incompetent incurably defective because the appeal had been filed in contravention of the provisions of order 9 rules 5 and 6 of the Civil Procedure Rules.2. That no leave was sought to appeal against the directions issued by the court on October 25, 2022 as required by the provisions of order 43 o the Civil Procedure Rules.3. Other grounds to be adduced during the hearing and affidavits to be filed.

2. They also filed an application dated 7/11/2022 seeking the following:-1. That pending the hearing and final determination of this application this honourable court be pleased to set aside the ex parte order made on October 27, 2022. 2.That this honourable court be pleased to strike out the appeal herein together with the applications dated 26th October 2022 and October 27, 2022. 3.That the costs of this application, the appeal as well as the application dated October 26, 2022 and October 27, 2022 be borne by the appellants.

3. The respondent filed a replying affidavit sworn by Justus Ododo on 28/11/2023 these have been pending in court and in finitim basis of evidence elsewhere. The court handling a preliminary objection is not a finder of fact.

4. The court is not involved in the finding of fact as the suit was heard on a preliminary objection. In hearing a preliminary objection, this court and the court below have the same jurisdiction. They proceed on an understanding that what is pleaded in the plaint or memorandum of Appelal is true. It is what the English common law used to call a demurrer. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltdv. West End Distributors Ltd [1969] E.A. 696, made this pertinent observation. It said: -“The first matter relates to the increasing practice o f 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".

5. In a Tanzanian case of Hammers Incorporation Co. Ltd v the Board of Trustees of The Cashewnut Industry Development Trust Fund, where the Court of Appeal, (Rutakangwa, N P Kimaro and S S Kadage JJA), sitting in Dar es salaam in their decision given on 17/9/2015 regretted that the practice of raising preliminary objection that was frowned upon by the court of appeal in kampala in the Mukisa biscuit case(supra) still persists. They 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.”

6. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, justice Kiarie Waweru Kiarie, summarized the preliminary objection nicely as seen from two of the judges in Mukisa Biscuit Manufacturing Co Ltd(supra): -“A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co Ltd v 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 page701 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....”

7. A Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest &others vs Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010),( Luanda, JA , Ramadhani, C.J. , Rutakangwa, JJA), put the issue of preliminary objections in a more succinct manner: -“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to beascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.

8. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro v 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. It is therefore my 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 memorandum of Appeal or the plaint as the case may be and preliminary objection. If you have to refer to the defense or any affidavit, then the preliminary objection is untenable.

10. In this case there is no plaint. It is an appeal. The appeal was filed by the firm currently on record in this appeal. There was no one else on record in this matter. The injunction in order 42 rule 1 of the court of Civil ProcedureRules is as doth: -

11. Order 42 rule 1 provides are doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

12. This means that a memorandum of Appeal is a pleading for which instructions are separately given. It is not a continuation of previous proceedings. The application and preliminary application arebased on quick sand.

13. In Mary Nchekei Paul v Francis Mundia Ruga [2019] eKLR, the court of Appeal stated as doth, while addressing rule 23 of the Court of Appeal rules which is pari materia order 9 rule 9 of the Civil Procedure Rules, 2010, as doth: -,“For this latter submissions that the applicant’s advocate was not properly on record, Miss Njenga sought to rely on a High Court decision, SK Tarwadi v Veronica Muehlemann [2019] eKLR regarding the provisions of order 9 rule 9 of the Civil Procedure Rules, 2010 which provides that :-“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change of intention to act in person shall not be effected without an order of the court-(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

5. I have considered the application and submissions by counsel, including the authorities cited by Miss Njenga. In considering an application of this nature under rule 4 of this Court’s Rules, a single judge exercises wide and unfettered discretions, but which must however be exercised judiciously and never arbitrarily or capriciously. The Court has to take into account, among other factors, the length of the delay; the reasons for the delay; whether the intended appeal is arguable or the chances of its success if the application is allowed; and the degree of prejudice to the respondent if the application is granted. See Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1977] eKLR.“6. Before I apply those principles to the application before me, I have to first determine whether M/s C.M. King’ori Advocates are rightly before this Court, based on the respondent’s submissions that they did not seek the Court’s leave to come on record in place of M/s G.M. Wanjohi Advocate who was acting for the applicant in the trial court, as per the provisions of order 9 rule 9 of the Civil Procedure Rules.7. With respect, Miss Njenga’s submissions to that effect are misplaced. This Court has its own rules of procedure, the Court of Appeal Rules, and the cited provisions of the Civil Procedure Rules are therefore inapplicable.Rule 23 of the Court of Appeal Rules that addresses the issue of change of advocate states as follows:-“(1)Where a party to any application or appeal changes his advocate or, having been represented by an advocate, decides to act in person or, having acted in person, engages an advocate, he shall, as soon as practicable, lodge with the Registrar a notice of the change and shall serve a copy of such notice on the other party or on every other party appearing in person or separately represented, as the case may be.(2)An advocate who desires to cease acting for any party in a civil appeal or application, may apply by notice of motion before a single Judge for leave to so cease acting, and such advocate shall be deemed to have ceased to act for such party upon service on the party of a certified copy of the order of the judge.”8. M/s G.M. Wanjohi Advocates never acted for the applicant in this matter, they represented her before the trial court. The application before me was filed by C.M. King’ori Advocates. It is a fresh application and so the said advocates are properly on record. If the application had been filed by M/s G.W. Wanjohi Advocates then M/s C.M. King’ori Advocates would have been required to comply with rule 23 of the Court’s Rules but that is not the case. Having disposed of that preliminary issue, let me now substantively consider the application in light of the aforesaid principles.”

14. Therefore, the Appeal having been filed by Kimitei Nthenge and company advocates they are properly on record.

15. In the circumstances the preliminary objection is untenable and is accordingly dismissed with costs of Kshs. 20,000/= payable to the appellant.

16. On the notice of motion, it is the factual wing of the preliminary objection. It is based on the fact that the Advocates for the Appellant are not properly on record. Parties have submitted extensively.

17. The question remains one, does an appellant need leave in the lower court in order to file an appeal?

18. When the matter came before me in the morning, I wanted to eat the real meat only to be served with soup. I therefore directed that the matter be placed today at 2pm, to enable the court to deliver its Ruling on the preliminary objection and its related application.

Analysis 19. The application is based on the fact that there is leave missing in the filing of this appeal. The question is not even on a technicality. It is what in law we call deminimis no curat Lex.

20. I have perused the appeal herein and do not find any other advocate on record. A preliminary objection cannot be raised on the provisions of order 9 rule 3 relates to change in a matter.

21. An appeal is a separate suit. Granted that the advocate on record in the lower court is denied, for purposes of service to be the same. This only applies for purposes of service.

22. Where the aggrieved party instructs a different party, he does not need to change in the lower court. Indeed a party may be aggrieved by a Judgment yet he is not a person and file an appeal. He does not nbeed to be joined to the lower court file.

23. In the circumstances, I find the objection untenable and accordingly dismiss the application with costs of Kshs, 25,000/=.

Determination 24. The court makes the following determination:-a.The application dated is hereby dismissed with costs of 25,000/=.b.The preliminary objection is dismissed with costs of 20,000/=.c.The matter to proceed for directions immediately after Ruling.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII ON THIS 8TH DAY OF DECEMBER 2023……………………KIZITO MAGAREJUDGEIn the presence of:-M/s Nthenge & Company Advocates for the ApplicantM/s Mogire & Co. Advocates for the RespondentCourt Assistant - Roselyn