[2022] KEHC 10255 (KLR)

Wanja & another v Roothaert (Miscellaneous Application E193 of 2021) [2022] KEHC 10255 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10255 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Application E193 of 2021

MA Odero, J

June 3, 2022

Between

Charity Hilda Wanja

1st Applicant

Rootahaert Ndwiga

2nd Applicant

and

Ralh Roothaert

Respondent

Ruling

1. Before this Court for determination is the Notice of Preliminary objection dated 24th March 2022. The Respondent Ralph Roothaert filed the Preliminary objection challenging the Notice of motion dated 15th October 2021 filed by the Applicant. The said Preliminary objection was premised upon the following grounds:-“1. That the Application is incurably defective.2. That the said application is misconceived, incompetent and bad in law and fatally defective.3. That the said application has not been filed under the marriage Act 2014. 4.That the Application for maintenance is not substantiated.5. That none of the prayers in the said application are substantiated.”

2. The Respondent Charity Hilda Wanja Ndwiga filed a Response dated 15th March 2022 in which she opposed the Preliminary Objection on the following grounds:-“1. That the Preliminary Objection was misconceived and bad law and seeks to derail the hearing of the main suit.

2. Thatthe Preliminary Objector seeks to defeat Article 159 (2) of the Constitution that provides that the matter should be heard substantively.”

3. The Preliminary Objection was canvassed by way of written submissions. The Respondent filed the written submissions dated 28th March 2022 whilst the Applicant relied upon her written submissions dated 25th March 2022.

Background4. The applicant herein filed in this court the Notice of Motion dated 15th October 2021 in which she sought the following orders:-“1. Spent2. That conservatory orders be made and issued to the Respondent against evicting the Applicant from her/their matrimonial home known as Kerarapon/ngong/Ngong/18594. 3.That a conservatory order be issued against selling the Kerarapon/Ngong/Ngong/18594. 4.That the applicant is a diplomat’s wife and she deserves to continue living within the living bracket/lifestyle which she has been accustomed to for the last 23 years.5. That an order be made compelling the Respondent to continue maintaining his lawful/legally married wife by giving a monthly maintenance of Kshs 4,000,000/-.6. That an order be made to compel the Respondent to refund monies lend to his legally married wife amounting to Kshs 500,000/- part of which monies are given in cash and others paid directly to serve the providers7. Costs of this application be provided for.” 5. In response to this notice of motion the Respondent filed the Preliminary Objection dated 24th March 2022.

Analysis and Determination 6. I have considered the Preliminary Objection filed by the Respondent, the Reply filed thereto as well as the written submissions filed by both parties.

7. The definition of what constitutes a preliminary objection was given in the case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd1969 E.A as follows:-“…..a preliminary objection consist 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…..”

8. InNitin Properties Ltd v Singh Kalsi & another [1995] the Court of Appeal states as follows:-“A preliminary objection 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 excise of judicial discretion.”

9. The Respondent has claimed that the Applicants suit is fatally and incurably defective as it has been instituted by way of a Notice of Motion which is not a legally recognized means of instituting a suit.

10. The Applicant on the other hand argues that the Preliminary objection does not raise a pure point of law. She submits that under Article 159 of the Constitution of Kenya 2010 courts are required to administer substantive justice.

11. Section 19 of the Civil Procedure Act Cap 21 states that: -“Every suit shall be instituted in such manner as may be prescribed by Rules.” (Own emphasis)

12. Likewise Order 3 Rule (i) (ii) of the Civil Procedure Rules 2010 provides that:-“every suit shall be instituted by way of a Plaint or in such other manner that may be prescribed. As a general rule a suit can only be instituted by way of a Plaint, petition or an Originating summons.” (own emphasis)

13. Both section 19 and Order 3 use the word shall. This makes the filing of a plaint a mandatory provision of law. It is not a discretionary directive. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a property instituted suit. The Applicant did not file any plaint in this matter.

14. In Geoffrey Ndungu Theuri vs Law Society of Kenya [1988] eKLR, the Court stated as follows: -“…… the order specifically refers to a suit which is defined under section 2 of the Civil Procedure Act in these terms; ‘suit’ means all civil proceedings commenced in any manner prescribed under the Civil Procedure Rules and an applicant is not entitled under Order 30 of the Civil Procure Rules to seek or obtain an order for injunctive relief against another party without filing a suit. The grossly abused Section 3A of the Civil Procedure Act does not give the court the power to act without jurisdiction.” (Own emphasis)

15. In Photo Energy Limited Vs Hashi Energy LimitedMisc 180 of 2018 the Court stated as follows:-“Order 3 Rule (i) (ii) of the Civil Procedure Rules provides that every suit shall be instituted by way of a Plaint. As a general rule a suit can only be instituted by way of a Plaint, Petition or an Originating summons. A Notice of Motion is not legally recognized as an originating process. A Notice of Motion can only be filed within a properly instituted suit. The Applicants failed to file any originating process in this matter. I find that the attempt to institute this suit by way of a notice of Motion renders the entire suit defective.” (own emphasis)

16. In this matter the Applicant did not anchor her Notice of Motion in a suit. She does not have a competent suit before the court. The application is not anchored in any pleading to give it validity.

17. In her response opposing the Preliminary Objection the Applicant states that the Preliminary Objection is bad in law as it seeks to derail the hearing of the main suit. Which suit is the Applicant referring to, the court asks? There is no plaint filed in this matter. No suit exists. The suit (if filed) would indicate the substantive or final prayers which the applicant would be seeking. Further the Applicant in opposing the Preliminary Objection places reliance on Article 159 (2) (d) of the Constitution which provides that: -“(d)Justice shall be administered without undue regard to procedural technicality.”

18. Not every procedural blunder can be excused as a ‘mere technicality’. The filing of a suit is a mandatory statutory provision which the court cannot simply wish away. In the case of Dishon Ochieng v Sda Church[2012] eKLR the court held that an application must be anchored in a plaint and that failure to comply renders the said application fatally defective.

19. The failure/omission of the Applicant to file substantive suit cannot be overlooked as a “mere technicality.”

20. Article 159(d) cannot be used to excuse glaring omissions in adhering to statutory provisions. In Scope Telmatics International Sales Limited v Stoic Company & Another [2017] eKLR, it was held that -“Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure ….”

21. Based on the foregoing, I find that the omission/failure by the Applicant to file a suit by way of a plaint on which to anchor her application renders the said application fatally defective and therefore a non-starter. I find that the Preliminary Objection is merited. The application dated 15th October 2021 is hereby struck out.

22. Costs to be met by the applicant.

DATED IN NAIROBI THIS 3RD DAY OF JUNE 2022. ............................................MAUREEN A. ODEROJUDGE