[2017] KEHC 3869 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 83 OF 2016

STEPHEN KAHINDI BAYA……..………….....……….…1ST PLAINTIFF

TUMAINI MASHA WANJE ……………....………....…. 2ND PLAINTIFF

VERSUS

THE OCPD DOG SECTION KISAUNI……………......1ST DEFENDANT

THE OCS NYALI POLICE STATION ……………..... 2ND DEFENDANT

THE DIRECTOR OF PUBLIC PROSECUTIONS …. 3RD DEFENDANT

RULING

1. The Director of Public Prosecutions, the 3rd defendant/applicant filed a preliminary objection on 15th February, 2017 raising the following grounds:-

(i) The suit discloses no cause of action against the respondents. There is no live controversy between the parties raised in the plaintiffs’ pleadings to warrant the court’s intention (sic);

(ii) The pleadings do not invoke the court’s jurisdiction to entertain the suit and as such the pleadings are fatally defective and incompetent;

(iii) The suit deserves to be struck out as it offends the provisions of Article 157 of the Constitution, the Office of the Director of Public Prosecutions Act and the National Police Service Act on the mandates (sic) of the respondent;

(iv) That the suit is scandalous and an abuse of the process of the court and is calculated to waste valuable judicial time;

(v) The plaintiffs are properly before the trial court by virtue of section 27(1)(b) as read with section 27(4) of the Alcoholic Drinks Control Act No. 4 of 2010 which provisions the plaintiffs are not challenging;

(vi)The suit offends the provisions of the Civil Procedure Rules, 2010 on framing of suits and lacks particulars of harassment and bribery to enable the respondents respond, to wit;

(a) No particular officers of the 1st and 2nd respondents have been named as receiving bribes;

(b) The alleged bribe givers are not specified; and

(c) The particulars of harassment, by whom and against whom are not specified;

(Vii) The application is fatally defective and incompetent as it is based on a suit that is similarly fatally defective, incompetent and for want of jurisdiction; and

(viii) For the foregoing, the orders sought cannot issue and therefore the suit and application be struck out and dismissed in limine.

2. Mr. Wamotsa, Learned Counsel for the 3rd applicant informed the court that the substratum of the entire suit is that the plaintiffs/respondents do not want to be arrested or prosecuted for being in possession of mnazi which is an alcoholic drink which does not conform to Section 27(1)(b) as read with Section 27(4) of the Alcoholic Drinks Control Act. Counsel submitted that as per the charge sheet attached to the respondents' affidavit, they state that their arrest and prosecution amounts to harassment. He stated that the respondents are not challenging the legality of the sections of the law under which they are charged. He added that the selling of nazi is a major preoccupation at the Coast.

3. Counsel further submitted that there is no controversy between the parties as the charge sheets are of Kabibi Mae and Richi Kalama, yet the said people have not filed a case before this court. Mr. Wamotsa added that it is on the basis of the charge sheets that harassment is being alleged. In the applicant's view, the respondents should come to court by way of Judicial Review or a Constitutional petition, therefore the court is being asked to make orders in vain which is an abuse of the court process. It was contended that the respondents have no locus standi to come before the court relying on charge sheets where they are not accused persons.

4. In Mr. Wamotsa’s view, the real issue is not being in possession of mnazi but being in possession of a drink that does not conform with the required packaging. It was also submitted for the applicant that the names of the Police Officers who allegedly received bribes, when and where they so received are not given. He prayed for the amended plaint and notice of motion to be struck out.

5. On his part, Mr. Owino’s position was that the applicant was clinging to a technicality at the expense of justice. He submitted that a cause of action can be a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. He argued that the respondents have come to court on behalf of Upendo Palm Wine Self Help Group. They have a reasonable cause of action and have complaints they want this court to address. He stated that a reasonable cause of action does not need to succeed at 100% but as long as there are issues for determination, the court should hear the matter. Counsel added that Article 157 of the Constitution of Kenya gives the applicant powers to institute prosecutions in any court but such powers should not be abused but should be in line with the Alcoholic Drinks Control Act.

6. Counsel contended that when the respondents filed their pleadings, they were challenging if mnazi is an alcoholic drink. He stated that the said drink does not need manufacturing but only premises where it can be sold after it is tapped from a coconut tree. He added that most consumers take the drink when it is fresh, thus the only thing required is a licence.

7. On the issue of framing of the suit and failure to disclose the Officers who have taken bribes, Counsel submitted that this will be disclosed when they file witness statements before pre-trial directions are given. Counsel further argued that Order 3 of the Civil Procedure Rules provides for framing of suits, the said Order does not state that particulars of harassment and bribery should be included in a plaint.

8. In response to the foregoing, Mr. Wamotsa stated that jurisdiction is not a technical aspect of a case as without it, the court will not hear a case. He stated that the submission that mnazi is a natural drink should come out during trial. He concluded by submitting that the particulars of bribery and harassment should be set out in the pleadings to enable the other party to address the same fully.

ANALYSIS AND DETERMINATION

The issues for determination are:-

a) If the respondents have locus standito bring the present suit; and

b) If the suit herein should be struck out.

LOCUS STANDI

9. In paragraph 6 of the amended plaint filed on 28th October, 2016, the plaintiffs describe themselves as members of Upendo Palm Wine Self Help Group who are mnazi sellers. Attached to the amended plaint is a document granting authority to Stephen Kahindi Baya, the 1st respondent and Tumaini Masha Wanje, the 2nd respondent, to file suit on behalf of 31 members of Upendo Palm Wine Self Help Group (Ziwa la Ng'ombe) Nyali Constituency.

10. Order 1 rule 8(1) of the Civil Procedure Rules provides as follows:-

“Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.”

11. In the case of Damesa Association versus County Council of Isiolo & Others [2007] LLR 6177 (HCK), the court stated thus:-

“In an unincorporated body such as a society, where there are numerous members, the office bearers would file suit in their names suing on behalf of the association. As plaintiffs, they need not seek the leave of the court to bring a representative suit. The effect of the said plaintiffs suing is that they are suing in a representative capacity as well as under their own right …... legally the members of an association are permitted either alone or with others to bring a suit on behalf of the association ...… the suit must be filed by the chairperson and or office bearers on behalf of the association as a plaintiff.”

12. A perusal of the 1st respondent’s statement reveals that he is the Chairman of Upendo Palm Wine Self Help Group while the 2nd respondent is the Treasurer of the said Group. A certificate of registration of Upendo Palm Wine Self Help Group is attached as exhibit A to the affidavit filed on 12th August, 2016. It was issued by the Ministry of Labour Social Services after the Group was registered on 24th February, 2016 under registration No. DSD/KSN/CD/2016/723.

13. The minutes of a meeting held on 10th March, 2016 attached as exhibit B to the respondents’ affidavit reveals that the Chairman of the Group is the 1st respondent and the Treasurer is the 2nd respondent. Taking into consideration the foregoing documentation, the assertion by Mr. Wamotsa that the respondents have no locus standi to institute the present suit is without merit. I hereby do hold that they have locus standi to institute the present suit as representatives of Upendo Palm Wine Self Help Group.

STRIKING OUT OF THE SUIT

14. The applicant’s submissions are a cocktail of points of law and facts. Mr. Wamotsa submitted that there is no matter in controversy between the parties because in his view, the respondents do not want to be arrested and charged. Mr. Owino’s position however is that his clients are being harassed by the Police. Issues of the nature brought out above are matters of fact. How would a court determine whether or not the respondents are being harassed without hearing their evidence? The issue of whether or not nnazi is an alcoholic drink that does not require processing can only come out by hearing the evidence of the parties to this suit.

15. In Moses Likoye Wanjala vs Bernad Wekesa Sambu [2013] eKLR the Court stated as follows regarding the threshold for a preliminary objection:-

“The legal delimitations for a preliminary objection were set a long time ago in the case of Mukisa Biscuit Manufacturing Co. Ltd. vs West End Distributors Ltd. [1969] E.A. 696. ”

As per law JA:-

“so far as I am 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.”

As per Sir Charles Newbold P:

“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 what is sought is the exercise of judicial discretion.”

16. I have already pointed out that what has been raised by the applicant is a mixture of both facts and law, as such, the preliminary objection raised by the applicant cannot pass muster and must fail. In his submissions, Counsel for the applicant did indicate that the particulars of harassment by the respondents have not been included in the plaint and prayed for the striking out of the suit.

17. Section 100 of the Civil Procedure Act makes provisions for the general power to amend pleadings in the following words:-

“The court may at any time, and on such terms as to costs or otherwise as it thinks fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”

18. Order 8 rule 5 of the Civil Procedure Rules states as follows:-

“(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.

(2) This rule shall not have effect in relation to a judgment or order.”

19. Mr. Owino’s response to Mr. Wamotsa’s submission of the respondents’ failure to include the particulars of harassment was that Order 3 of the Civil Procedure Rules does not provide that such particulars need to be included in a plaint. In his view, disclosure of such facts would be made through witness statements. It is this court’s considered opinion that the Civil Procedure Rules cannot explicitly provide for each and every situation that may arise and the particulars that a party must include in pleadings. It behoves a Counsel to exercise diligence in drafting of pleadings. It is my finding that the applicant will be handicapped in responding to the issues of harassment raised in the pleadings if particulars thereof are not included.

20. In D.T. Dobie & Company (Kenya) Ltd. vs Muchina [1982] KLR, Madan JA (as he then was) stated as follows with regard to striking out of suits:-

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment it ought to be allowed to go forward, for a court of justice ought not to act in darkness without the full fact of the case before it.”

21. Similarly, in Institute for Social Accountability & Another vs Parliament of Kenya & 3 Others [2014] KLR, Leanaola, Mumbi & Majanja JJ while determining whether to allow the petitioners to amend their consolidated petitions observed that:-

“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intended to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of action or proceedings.”

22. Taking into consideration the circumstances of this case, I dismiss the applicant’s preliminary objection. Suo moto, I grant leave to the respondents to amend their plaint and file supplementary witness statements within 14 days from the date of this ruling. The applicant is granted leave to file its defence within 14 days of service. Each party shall bear its own costs.

DELIVERED,DATED and SIGNED at MOMBASA on this 13thday of July, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

No appearance for the 3rd defendant/applicant

Mr. Owino for the plaintiffs/respondents

Mr. Oliver Musundi - Court Assistant