[2023] KEHC 27230 (KLR)

Soud & another v El-Busaidi (Trustees of Sheikh Ali Bin Salim Trust aka Malindi School Trust) (Commercial Case 5 of 2022) [2023] KEHC 27230 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27230 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Case 5 of 2022

DKN Magare, J

December 14, 2023

Between

Soud Salim Soud

1st Applicant

Saud Abdalla Soud El-Busaidi

2nd Applicant

and

Col Sulaiman Mohamed El-Busaidi (Trustees of Sheikh Ali Bin Salim Trust AKA Malindi School Trust)

Respondent

Ruling

1. This suit was commenced by way of an Originating Summons dated 1st November 2022 and filed on 2nd November 2022.

2. The Originating Summons materially sought the substitution of the Respondent as a Trustee of the Malindi School Trust with the Applicants.

3. The Respondent filed a Preliminary Objection dated 26th May 2023. It is contended in the Preliminary Objection that the Applicants in the Originating Summons lacked locus standi under Section 57 of the Trustees Act.

4. I note that the said Section 57 of the Trustees Act requires a person beneficially interested in the land subject to the Trust or a Trustee to bring such an Application. I wonder how this could be a pure point of law but I will return to this at a later stage.

Submissions 5. The parties filed respective written submissions.

6. It was the submission by the Respondent that the Applicant had no locus standi to sue because the Applicants were neither beneficiaries nor trustees of the subject Trust which was a charitable Trust for the advancement of education. Counsel relied on Section 57 of the Trustees Act.

7. Counsel also cited the case of Akokor & another v Kitelapong & 2 others (Legal Representatives of The Estate of Jame Mariachi Kokita (Deceased); Kokita & 3 others (Interested Parties) (Environment and Land Miscellaneous Application 7 of 2020) [2022] KEELC 2825 (KLR) (29 June 2022) (Ruling) to canvass the point that the Applicant had no locus.

8. I have not had sight of the submissions by the Applicant, nonetheless, I will proceed to determine the Preliminary Objection.

Analysis 9. It has been held by superior courts and repeated by this Court that in determining the Preliminary Objection, the court is not involved in the finding of fact. In hearing a Preliminary Objection, this court proceed on an understanding that what is pleaded in the Originating Summons is correct. It is what the English common law used to call a demurrer. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696, made this pertinent observation. It said: -“The first matter relates to the increasing practice of 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".

10. In a Tanzanian case of Hammers Incorporation Co. Ltd v The Board of trustees of the Cashewnut Industry Development Trust Fund, 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 ([1969) EA 696 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.”

11. 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....”

12. 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 plaint, or Originating Summons in this case and preliminary objection. If you have to refer to the defence, then the Preliminary Objection is untenable.

13. As was held by the Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest & others v 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.

14. Back home, Justice Prof J.B. Ojwang J (as he then was) also 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.

15. I am unable to discern, without testing the facts in this Originating Summons by way of evidence whether the Applicants are not beneficiaries or Trustees in the manner stipulated under Section 57 of the Trustees Act.

16. As such, the Preliminary Objection as is premised on the assertion that the Originating Summons is bad in law and barred by the doctrine of locus standi constitute contestable facts which should be proved by evidence. I am thus unable to allow the suit to be disposed off at this stage when the Applicants could be given an opportunity to present evidence for hearing on merits.

Determination 17. The upshot of the Preliminary Objection dated 26th May 2023 is dismissed with costs of Kshs 50,000/- payable to the Applicants.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Kazungu for the applicantMiss Mulongo for Omondi for the RespondentCourt Assistant - Brian