[2023] KEHC 27127 (KLR)

Republic v County Secretary, Bungoma County & another; Barasa & another (Exparte Applicants) (Suing as legal representatives of the Estate of the Late Beatrice Nanjala Kombi) (Judicial Review E011 of 2022) [2023] KEHC 27127 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27127 (KLR)

Republic of Kenya

In the High Court at Bungoma

Judicial Review E011 of 2022

REA Ougo, J

December 8, 2023

Between

Republic

Applicant

and

The County Secretary, Bungoma County

1st Respondent

Chief Officer Finance, Bungoma County

2nd Respondent

and

Jackline Nelima Barasa

Exparte Applicant

Juliana Nasimiyu Kombi

Exparte Applicant

Suing as legal representatives of the Estate of the Late Beatrice Nanjala Kombi

Ruling

1. The ex-parte applicants herein successfully prosecuted Bungoma CMC No. 217 of 2019 against the County Government of Bungoma and obtained a judgment in their favour for Kshs 1,132,300/-. The decretal sum and costs have not been satisfied hence filing of the Notice of Motion dated 13th December 2022. The ex-parte applicant in his application is seeking the following orders:a.An order of Mandamus to be issued against the Respondents herein namely the County Secretary of Bungoma and the Chief Finance Bungoma County, to compel them to proceed and pay out the decretal sum of Kshs 1,132,300/- general damages, costs and interest in Bungoma CMC No. 217 of 2019, whose judgment was delivered on 9/7/2021 and it continues to attract interest at court rates.b.That the court be pleased to set aside a timeline and/or duration within which the respondents will settle the decretal sum with interest until the date of payment.c.That the applicant be at liberty to apply to this court for all necessary and/or consequent orders that this Honourable Court ma deem fit and just grant in the circumstances.d.Costs of this application.

2. Before the matter was set down for hearing, the respondents filed grounds of opposition and a preliminary objection dated 30/6/2023 on the following grounds:a.That the Notice of Motion are still born, incompetent, bad in law and otherwise an abuse of the due process of the court.b.That the respondents are improperly joined to these proceedings not being constitutional and statutory legal entities and cannot by dint of section 133 of the County Government Act 2012, be sued in their personal capacity in discharge of public mandate vested in the County Government of Bungoma and whose offices are not capable of being sued and the Notice of Motion ought to be struck off as against them.c.That the purported Respondents are legal phantoms for they are neither human beings nor an incorporated or statutory legal entity capable of suing or being sued and this Honourable Court is obligated to strike then off from the Judicial Review as it is an abuse of the Court process to purport to sue non-existent entities.d.That the said application is misconceived, mischievous, unmeritorious, frivolous and vexatious hence an abuse of the due process of the court.e.That the application has been brought in bad faith and the same does not comply with the mandatory provisions of section 13A of the Government Proceedings Act.f.That no leave was sought by the ex-parte applicants before filing the notice of motion contrary to Order 53 of the Civil Procedure Act.g.That the proceedings are time barred contrary to the provisions of the Law Reform Act.

3. The respondent despite having been allowed to file their written submissions elected not to file their submissions.

4. The ex-parte applicants filed their written submissions in opposition to the preliminary objection. They submit that section 21 of the Government Proceedings Act provides that civil proceedings can be instituted against a government department, or an officer of the government as such and therefore the respondents are capable of being sued. They urged the court to consider the decision of Mativo J. in Republic v Principal Secretary, Ministry of Internal Security & another ex-parte Schon Noorani & Another [2018] eKLR where the court set out the 8 conditions that must be present for an order of mandamus to be issued. The respondents submit that the county secretary and chief officer of finance should be compelled to settle the decretal sum in civil suit no. 217 of 2019 of Kshs 1,132,300/-. They also relied on the decision made in Soloh Worldwide inter-enterprises v County Secretary Nairobi County & Another (2016) eKLR. They also pointed out that they had sought leave which was granted by the court on 9/12/2022 as per Order 53 (1) of the Civil Procedure Rules. The ex-parte applicants pray that the preliminary objection be struck out and that their notice of motion be allowed.

5. I have carefully considered the preliminary objection and the submissions by the ex-parte applicants as well as the law. At the onset, despite assertions from the respondents contending that the ex-parte applicant neglected to seek leave of court, the record indicates otherwise. This court on 9/12/2022 granted the applicant leave and therefore the provisions of Order 53 of the Civil Procedure Rules were complied with.

6. I now turn to consider whether the preliminary objection is premised on pure points of law and if so, whether the same should be allowed. The court in Jamii Bora Kenya Limited v Esther Wairimu Mbugua & another[2019] eKLR, observed that:‘’A “preliminary objection” correctly understood, is now well defined as, and declared to be, a 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, 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. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence….’’

7. A Tanzanian 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, CJ, 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 be ascertained 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. The respondents argue that they are improperly enjoined in this suit as they are not constitutional or statutory legal entities. The respondents, in my view, have invited the court to consider whether there was a misjoinder of parties. The application before the court is a preliminary objection and must therefore be purely based on a point of law. InMaureen Onsongo v EOH Limited and EOH/Copy Cat Limited Company [2021] eKLR the respondent therein filed a preliminary objection on grounds thatthe suit before that court was incurably defective and ought to be struck out because the Respondent was not a proper party. The court dismissed the preliminary objection and held thatmisjoinder cannot be said to have rendered the suit so hopeless that it cannot be salvaged by an amendment at any time before judgment. The court observed that:“14. The effect of misjoinder of non-joinder of parties, is provided for by Order 1 Rule 9 of the Civil Procedure Rules, 2020, which make it patently clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. It provides 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.”

9. Similarly, the Court of Appeal in William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others [2016] eKLR was called to consider a matter that was commenced before the high court but struck out by the high court after the respondents filled a preliminary on grounds that there was a misjoinder of parties. The Court of Appeal considered the matter on appeal, reversed the decision of the High Court and dismissed the preliminary objection by holding that:“We are of the considered view that the preliminary objections raised by the respondents did not raise any pure point of law. By and large the respondents dwelt on the character of the suit before the trial court in terms of the number of parties involved. Of concern to the respondents was the fact that each of the appellants had a separate and distinct claim. The respondents were of the view that the said claims were deserving of separate suits and hearings as opposed to a collective hearing. 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.……strictly speaking the respondent’s preliminary objection did not meet the requisite threshold and should not have been allowed.”

10. In my view, the preliminary objection does not raise any pure points of law. If there was a misjoinder, the same cannot be a ground to defeat the suit as the suit can be salvaged by an amendment at any time before judgment. The issue of whether the ex-parte applicant served the respondents with a notice of intention to institute proceedings and whether the respondents are liable are matters that will be considered at the hearing of the main application.The preliminary objection dated 30/06/2023 is hereby dismissed. Costs shall be in cause.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 8TH DAY OF DECEMBER 2023. R.E. OUGOJUDGEIn the presence of:Miss Lugulu -For the ApplicantMr. Makokha -For the Respondents