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ELCDismissedNot stated in judgment· [2021] KEELC 4281 (KLR)

Justus Wekesa & 2 others v Abubakar Bibi Mansor Haji (Sued in their capacity as the registered trustees of Imam Shafi Center for Memorization of the Quran Mosque [2021] KEELC 4281 (KLR)

High Court of Kenya (Environment and Land division context, Eldoret)
26 January 2021
1,894 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The court ruled on a preliminary objection raised by the defendants on the grounds that the suit was fatally defective for misjoinder of parties and lack of locus standi on the part of the plaintiffs. The suit concerned unapproved structures on land known as Eldoret Municipality Block 21 (King'ongo) 4729, registered in the name of Salim Kabwere, who was not a party to the suit and had allegedly given the plaintiffs no authority to sue. The defendant, citing Mukisa Biscuit, Oraro v Mbaja and other authorities, argued that the plaintiff lacked sufficiency of interest to sue and that the suit offended Order 2 Rule 15 of the Civil Procedure Rules. The plaintiffs opposed, submitting that the objection failed the Mukisa Biscuit threshold and that under Order 1 Rule 9 misjoinder cannot defeat a suit. The court framed two issues: whether the objection met the threshold of a preliminary objection and whether the suit should be dismissed for misjoinder or lack of locus standi. It held that the ownership of the suit property was not proven by any annexed title or lease, meaning the locus standi question required evidence and could not be resolved as a pure point of law. It further noted the suit did not concern ownership but unapproved structures causing harm. On misjoinder, applying Order 1 Rule 9 and the Court of Appeal's decision in William Kiprono Towett v Farmland Aviation, the court held misjoinder or non-joinder cannot defeat a suit, and invoked Article 159(2)(d) on procedural technicalities. The preliminary objection was dismissed with costs to the plaintiffs.

Key legal issues

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01

Threshold of a preliminary objection

Holding

The objection fails the Mukisa Biscuit threshold because ownership of the suit land is contested and would require evidence to resolve.

Reasoning

The court applied the Mukisa Biscuit test: an objection must be a pure point of law arising from the pleadings and capable of disposing of the suit without evidence. Here, the applicant's assertion that Salim Kabwere owns the suit land had no supporting title document annexed, so the locus standi question required viva voce or affidavit evidence, disqualifying it as a preliminary objection.

p. 3
02

Locus standi of the plaintiffs

Holding

The question of locus standi could not be resolved on a preliminary objection as it was tied to disputed questions of ownership of the suit property.

Reasoning

The court noted the applicant's assertion that the suit land belongs to Salim Kabwere who gave no authority to the plaintiffs. Since no title or lease certificate was annexed to prove ownership, and the suit does not concern ownership but rather unapproved structures causing harm, the locus standi issue required evidence and could not succeed as a point of law.

p. 3
03

Misjoinder of parties

Holding

Misjoinder cannot defeat a suit; the court may deal with the matter as regards parties actually before it.

Reasoning

The court invoked Order 1 Rule 9 of the Civil Procedure Rules as quoted by the Court of Appeal in William Kiprono Towett v Farmland Aviation, holding that misjoinder or non-joinder is not a ground to defeat a suit. It also cited Order 1 Rule 10 permitting substitution or addition of parties at any stage, and reinforced the constitutional principle against procedural technicality.

p. 4

Legal principles established

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  • A preliminary objection must consist of a point of law, arise from the pleadings, and be capable of disposing of the suit without requiring evidence.
  • Misjoinder or non-joinder of parties cannot defeat a suit under Order 1 Rule 9 of the Civil Procedure Rules.
  • Justice should be administered without undue regard to procedural technicalities.

Court orders

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  1. 1.The preliminary objection lacks merit and is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 9
  • Civil Procedure RulesOrder 1 Rule 10(1) and (2)
  • Civil Procedure RulesOrder 2 Rule 15
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (10)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West Distributors
    (1969) EA 969
  • Oraro vs Mbaja
    (2005) KLR
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Kibera Blessed Academy v World Missionary Evangelism of Kenya Registered Trustees & 4 others
    (2016) eKLR
  • Kivanga Estates Limited vs National Bank of Kenya Limited
    (2017) eKLR
  • Trust Bank Limited vs Amin Company Limited & Another
    (2000) KLR 164
  • William Kiprono Towett & 97 others vs Farmland Aviation Ltd & 2 others
    [2015] eKLR
  • William Kiprono Towett & 1597 Others vs Farmland Aviation Ltd & 2 Others
    (2016) eKLR
  • Alfred Njau & 5 others vs City Council of Nairobi
    [1983] eKLR
  • Republic vs District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
Jurisdiction invoked
First-instance civil suit under the Civil Procedure Act and Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Justus Wekesa & 2 others v Abubakar Bibi Mansor Haji (Sued in their capacity as the registered trustees of Imam Shafi Center for Memorization of the Quran Mosque [2021] KEELC 4281 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4281/eng@2021-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.