Kiriwa & another

2. One Jeremiah Tuti Okoko was authorized vide a written document titled “letter of authority” dated March 20, 2021 led under Order 1 rule 13 of the Civil Procedure Rules through the rm of Ms Kiarie & Co Advocates the following day to plead, appear, swear and generally act in on his own behalf and that of 16 persons who duly signed the said authority. The authority stated that the said Jeremiah Tuti Okoko was authorized to act in the application that accompanied it and subsequent ones and the hearing of the suit. Through the said authority the 17 persons who later made the impugned application continued to be represented by the law rm of Ms Kiarie & Co Advocates. 3. Contemporaneous with the ling of the notice of motion dated May 11, 2022 the said Jeremiah Tuti Okoko led a notice of intention to act in person. It was dated May 11, 2022. In the notice of intention to act in person Jeremiah Tuti Okoko indicated that he had withdrawn instructions from Ms Kiarie & Co Advocates and was henceforth acting in person. Upon ling the document, Mr Jeremiah Tuti Okoko led the application against which the preliminary objection was raised. The Objection 4. The preliminary objection was in the nature of seven (7) points which I summarize here after. The rst one was that they were strangers to the proceedings hence had no locus standi to bring the application. The second one was that one Jeremiah Tuti Okoko had no authority to represent the other applicants as he was not an advocate. The third one was that the prayers sought in the application were in regard to maintaining peace and status quo on the ground hence the Police and Provincial Administration had nothing to implement. The fourth one that there was no evidence that the order was served on the plaintis; the fth the application is an abuse of the process of court. The sixth that the application was designed to incorporate the police in upsetting the status quo hence made in bad faith; and the seventh and last that the application lacked merits and ought to have been struck out. Determination 5. 6. I carefully considered the content of the preliminary objection. The parties did not le any written submissions on the issue while the law rm of Ms Kiarie & Co Advocates from which instructions had been withdrawn indicated on July 18, 2022 when the matter came up for xing a date for the ruling herein that it left it to court to rule on the objection as by law required. The court formulated three issues for determination. These were: a. Whether the points raised by the plaintis amounted to a preliminary objection. b. Whether, if the points constituted a preliminary objection, they were merited. c. What orders to, including on costs of the objection. I begin by analyzing the rst issue: a. Whether the points raised by the Plaintis amounted to a Preliminary Objection 7. In determining an issue termed as a preliminary objection, the starting point for any court is being seized of an understanding of what amounts preliminary objection is. In the case of Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, Sir Charles Newbold dened a Preliminary objection as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13406/eng@2022-09-28 2

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or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… 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 had to be ascertained or if what is sought is the exercise of judicial discretion.” 8. In Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others [2004] eKLR, the same court held that: “ We are of the considered view that if a party wishes to raise a preliminary objection and les in court a notice to that eect and is subsequently served on other parties to the suit, the preliminary points should be suciently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that „the application is bad in law? without saying more does not assist the other parties to neither the suit nor the court to suciently prepare to meet the challenge. If it is only at the hearing that the preliminary objection is amplied and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush.” 9. Also, in Susan Wairimu Ndiangui v Pauline W Thuo & Another [2005] eKLR, Musinga J as he then was held as follows:“ A preliminary objection should not be drawn in a manner that is vague and non-disclosing of the point of law or issue that is intended to be raised. It should clearly inform both the court and the other party or parties in sucient details what to expect.” 10. It is clear that a preliminary objection arises on a point of law only. Any factual point and matter that requires long drawn out argument to establish other than the law falls short of a preliminary objection. Any prayer to uphold it as such is discarded and left for determination at the merits stage. For these reasons, this court proceeds to analyze the points raised herein to consider whether or not they fall within the ambit of a preliminary objection. 11. The rst one is that the applicants were strangers to the proceedings hence had no locus standi to bring the application. In essence the contention is that the applicants are not parties nor interested parties in this matter. On this, the question the court is whether the applicants were either plaintis or defendants or interested parties to the suit. 12. I have looked at the court record. I have also carefully analyzed the pleadings in this matter. What comes out clearly is that there are fourteen (14) plaintis and nine (9) defendants. Of these two adverse parties, none of the applicants is among them. Indeed, on April 20, 2021, the seventeen (16) applicants moved this court vide an application dated the same date. Of the prayers sought in the said notice of motion which was led under certicate of urgency, prayer No 4 which I consider relevant for purposes of the instant objection was for an order that the “court be pleased to enjoin the applicants as interested parties in this suit.” The application was neither xed for hearing nor prosecuted. It was not allowed by consent either. 13. It goes then without saying that as of today, the applicants have never been made parties on whatever nature in this suit. In the circumstances any prayers or applications sought by them, whether as individuals or as a group are nothing but strange fumes in the sweet fragrance of the plaintis and defendants in these proceeds. The court cannot allow non-parties who are at best busy bodies to bog down the business of the court in an otherwise straightforward process. For that reason, the rst point of the preliminary objection would succeed and it does. And since the rst point has succeeded, this https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13406/eng@2022-09-28 3

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court shall not engage in the consideration of the other points as that would amount to an academic exercise and a waste of the valuable time. 14. The upshot is that the preliminary objection succeeds. The application dated May 11, 2022 is therefore dismissed with costs to the respondents. RULING DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL THIS 28TH DAY OF SEPTEMBER, 2022. HON. DR. IUR FRED NYAGAKA JUDGE, ELC KITALE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13406/eng@2022-09-28 4

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