Fielden v Wilson & 2 others

2. The Appellant thus seeks the following reliefs in this Appeal: a) To ask the Court to vacate and set aside the ruling of the learned magistrate delivered on 26th August 2024 in Kili Chief Magistrate’s Civil No. E242 OF 2024; b) The suit in Kili Chief Magistrate’s Civil No. E242 OF 2024 be reinstated for hearing with an order for amendments, if need be; c) That the honourable court to make any other appropriate order for purposes of satisfying the ends of justice; d) The costs of the appeal and the costs in the lower court be borne by the respondents. 3. The appeal was canvassed by way of written submissions. 4. On the rst ground of appeal, the Appellant submitted that the learned magistrate erred in law by holding that misjoinder or non-joinder of parties is a pure point of law capable of determination through a preliminary objection. They relied on the denition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, emphasizing that it must raise a pure point of law based on undisputed facts and incapable of requiring ascertainment of evidence or judicial discretion. 5. The Appellant argued that misjoinder does not meet this threshold and is expressly insulated by Order 1 Rule 9 of the Civil Procedure Rules, which provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. They cited William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others (2016) eKLR, where the Court of Appeal held that misjoinder is not a pure point of law and cannot properly ground a preliminary objection. The same position was adopted in Republic v Charles Lutta Kasamani & Another ex parte Minister for Finance & Commissioner of Insurance [2006] eKLR and Patel Ravji Lalji & Another v Attorney General & 3 Others [2021] eKLR. 6. On the second ground, the Appellant submitted that the trial court relied on the assertion that the 1st and 2nd Respondents were ocials of Kili Plantations Ltd to conclude that they had been improperly sued in their personal capacities. The Appellant maintained that this issue was not a pure point of law and could not properly found a preliminary objection. He added that no nding was made by the trial court that the 3rd Respondent was a director or ocial of any company, yet the suit against him was similarly dismissed. The Appellant argued that there was no evidential or legal basis for such a conclusion. They submitted that the only credible evidence of company directorship or ocial capacity is contained in the records of the Registrar of Companies. Reliance was placed on Wambugu & 2 Others (Suing as Members/Former Members and Ocials of United Social Club) v Gichuki & 3 Others (ELC Case No. 257 of 2016) [2024] KEELC 6393 7. On the 3rd and 4th grounds, the Appellant argued that Order 1 Rule 9 of the Civil Procedure Rules reveals that non-joinder or misjoinder of parties in a suit is an irregularity which does not go to the root of a suit and that it is an irregularity which can be cured by an amendment and this cannot render a suit fatally defective. He relied on the case of Local Building and Construction Limited v Institute of the Blessed Virgin Mary Loreto Msongari & 2 others [2019] KEHC 10354 (KLR) and Chairman B.O.M Bishop Abiero Shauri Moyo Sec. School v Meshack Wesonga Osiyo [2022] KEELRC 418 (KLR) to buttress this point. 8. On their part, the Respondents submitted that Order 1 Rule 9 presumes that the parties before the court are at least competent and that the suit discloses a cause of action against them. They argued that the 1st and 2nd Respondents were sued in their personal capacities, yet the subject properties are https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18582/eng@2025-11-20 2

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registered in the names of corporate entities and that the 3rd Respondent, Wasim Birya, was enjoined in the suit without any pleading, factual basis, or explanation for his inclusion. To them, that was not merely a case of “misjoinder” as a curable irregularity but a fatal defect as the parties were wrongly sued and no cause of action was pleaded against them. 9. To them, the question of whether the Respondents were properly sued in their personal capacity is a pure point of law, determinable from the pleadings alone. They were guided by Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [supra]. They maintained that Order 1 Rule 3 of the Civil Procedure Rules permits joinder of parties only if relief is sought against them jointly, severally, or in the alternative, and if a common question of law or fact arises, and that the Appellant failed this test. 10. The Respondents further submitted that the trial magistrate correctly applied the principle of corporate personality. Relying on the case of Victor Mabachi & Another v Nurturn Bates Ltd [2013] eKLR, they argued that the 1st and 2nd Respondents are directors of corporate entities that own the suit properties and since no cause of action was pleaded specically against them in their own capacities, the suit was fatally defective. They added that the 3rd Respondent was not even alleged to be a director, shareholder, agent or employee of any relevant entity; that he is a total stranger to the suit. 11. The Respondents added that Order 1 rue 9 only applies where the suit is otherwise competently before the court and there is a genuine cause of action against the parties who are before it, which they stated was not the case herein. To support this argument, they relied on Departed Asians Property Custodian Board v Jaer Brothers Ltd [1999] 1 EA 55. The Respondent urged that the appeal be dismissed with costs. Analysis And Determination 12. This being a rst appeal, I am mindful that the duty of this court as set out in the decision of Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) EA 123 is to reconsider the evidence, evaluate it and draw its own conclusion of facts and law, and this court will only depart from the ndings by the trial court if they were not based on evidence on record; where the said court is shown to have acted on wrong principles of law, or where its discretion was exercised injudiciously as held in Mbogo & Another versus Shah (1968) EA 93. Having said that, it is pertinent that this court sets out what transpired at the trial court. 13. The Appellant led a Plaint at the Kili Magistrates Court seeking inter alia an order to compel the Respondents to remove all obstructions at or near the entrance to the Boat Yard road, to leave open the gate on the short cut being the connecting road between the county road of access and the high tide mark, Kili Creek and to remove rubbles and fences blocking the short cut between the Old Ferry road, Mnarani and the Mombasa-Malindi road. The Appellant’s claim was that the 1st and 2nd Respondents whom he described as directors of Kili Plantations Limited had engaged in illegal blocking of de facto rights of way to the Boat Yard. He claimed that the 3rd Respondent might have purchased a portion of the land owned by Kili Plantations and was also responsible for the blockage of the Boat Yard Road. Alongside the Plaint, he led a notice of motion dated 31st May 2024 wherein he sought interlocutory injunction reliefs against the Respondents to remove the wall fences, gate and stone boulders for the access road to Boat Yard and the short cut at Wild living establishment be restored. 14. In response to that application, the Respondents raised a preliminary objection on 26th June 2024 raising some four grounds, relevant to this appeal being that the Respondents were non-suited and no orders could issue against them as both the suit and application run contrary to Order 1 Rule 3. The Respondents contended that the parcels of land where the alleged blocked roads were situated, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18582/eng@2025-11-20 3

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were all private properties owned by Kili Plantations Limited and Anwani Limited. They exhibited ownership documents to that eect. 15. In his ruling, the learned magistrate appreciated the denition and scope of preliminary objections and in allowing the specic ground that is the subject of this appeal, he held as follows: “ 29. Under Order 1 Rule 3 of the Civil Procedure Rules, 2010, a person may be joined in a suit as a Defendant against whom any right to relief arising out of an act оr transaction is alleged to exist. The said provision provides as follows: … 32. The question that arises is can the 1st and 2nd defendants thus be sued in their personal capacities when they are directors in the said companies? The celebrated case of Salomon & Co Limited v Salomon [18971 AG 22 H clearly dened the legal position of a company…… This decision was given local interpretation in Multi choice Kenya Limited Versus Mamkam Limited & Anor (2013) eKLR where it was held that: "to my mind, there is no doubt that ever since the famous case of Salomon versus Salmon, courts have applied the principles of corporate personality strictly, but exceptions to the principles have also been made where it is too agrantly opposed to justice. Other instances include when a fraudulent and improper decision by scheming directors or shareholders is imputed. In such exceptional cases, the law either goes behind thе согрorate personality to the individual members or regards the subsidiary and its holding company as an entity..." … 35. The question which then arises is whether in the instant case there are reasons to lift the veil and sue the 1st and 2nd defendants on behalf of the companies. I nd that that there are no such circumstances that have been proved that would enable the court to nd that this is a case in which the veil needs to be lifted. 36. As for the 3rd defendant, the Plainti's case is that, "...Kili Plantations encompassed many thousands of acres of land on the Mnarani side of Kili Creek. Plots have been extensively sold to buyers, one of which might be Mr. Birya..." Clearly, for such a case as this, there was need for specicity and certainty on whether the 3rd defendant has any nexus to the suit properties as purchaser of any one of them. The plainti's assertion that he might be one of the purchasers thereof amounts to conjecture and speculation which does not meet the threshold for granting of an Order of injunction. 37. section 1A and 1B of the Civil Procedure Act, Cap 21 places on the court a responsibility to give eect to the Overriding Objectives of the Law, which include, but are not limited to the just determination of the proceedings; the ecient disposal of the business of the court; the ecient use of the available judicial and administrative resources; and the timely disposal of the proceedings at a cost aordable by the respective parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18582/eng@2025-11-20 4

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38. I am of the respectful view that the ecient disposal of the business of the court requires that the suit proceeds against the correct defendants against whom any Orders of the court can be enforced. 39. Guided by the foregoing legal provisions and case law, I hold that the defendants are wrongly joined in the Suit. The second limb of the preliminary objection is thus merited.” 16. The law and principles on preliminary objections is settled and correctly restated by the Parties herein; that a preliminary objection consists of a pure point of law, argued on the assumption that the facts pleaded by the other side are correct, and which if upheld, may dispose of the suit. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [supra], Sir Charles Newbold P further claried that a preliminary objection cannot be raised if any fact has to be ascertained or if judicial discretion is required. 17. The rst issue for determination is whether the question of misjoinder or non-joinder of parties is a pure point of law capable of being raised by way of a preliminary objection. Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the court shall deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. While it is correct, as the Respondents submit, that Order 1 Rule 9 presupposes that the suit discloses a cause of action against the parties sued, the question remains whether the determination of misjoinder in this case required the trial court to interrogate facts beyond the pleadings. 18. The Appellant had pleaded that the 1st and 2nd Respondents, though directors of Kili Plantations Limited, were the persons who personally blocked access roads and denied easement rights. Whether those actions were done in personal capacity or as agents of a corporate entity is in my view, a question of fact, requiring proof at trial and not one to be disposed of preliminarily without evidence. 19. The second issue is whether the learned magistrate correctly found that the 1st and 2nd Respondents were improperly sued because the suit properties were registered in the names of corporate entities. It is trite law, as held in Salomon v Salomon & Co. Ltd [1897] AC 22 and by our Court of Appeal in Victor Mabachi & another v Nurtun Bates Limited [2013] KECA 204 (KLR), that a company is a separate legal person and its directors or shareholders are not to be sued for acts of the company unless exceptional circumstances exist to lift the corporate veil. However, the Appellant’s pleadings alleged personal acts of obstruction by the Respondents. Whether these acts were indeed personal or were done on behalf of the company was a factual issue to be determined at trial upon evidence. 20. In my considered view, the trial magistrate descended into an evaluation of contested facts under the guise of a preliminary objection. The nding that no exceptional circumstances existed to lift the corporate veil could only properly be made after hearing evidence or upon a substantive application striking out the suit, not on a preliminary objection where the Appellant’s pleaded facts must be taken as true. 21. With respect to the 3rd Respondent, the trial court held that his inclusion was speculative and unsupported by a clear nexus to the suit properties. However, the Plaint and even the Notice of Motion specically pleaded that he was responsible for putting up the blockage complained of. That allegation, in my view, was sucient to raise a factual issue requiring clarication at trial. Whether or not a valid cause of action lies against him could not be determined without examining the facts and evidence. Accordingly, this too was not a pure point of law capable of being disposed of by way of a preliminary objection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18582/eng@2025-11-20 5

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22. It must also be noted that the Magistrate also appears to have failed to consider that amendments under order 1 rule 10(2), either at the instance of the parties or at the order of the court suo moto, could cure any perceived defects of misjoinder. Order 1 rule 10 (2) provides as follows: “ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 23. It is clear that provisions of Order 1 Rule 9 and Order 1 rule 10 (2) were enacted with the foresight that defects of suit regarding joinder may require to be expeditiously addressed by the court without even having parties go through the rigours of formally applying for further joinder or striking out where the court could clearly identify the necessary parties who should be joined at any stage in the proceedings. In addition, it is plain that whether the two Orders are read in isolation or conjunctively, they all have the eect of supplementing the provisions of Sections 1A and 1B of the Civil Procedure Act prescribing how the court and the parties ought to uphold the overriding objective of both the Act and the Rules. The court in Civicon Limited -v- Kivuwatt Limited & 2 Others [2015] eKLR has in the past emphasized that power given under the provisions of Order 1 the Rules is discretionary and must be used judicially, stating as follows: “ Again, the power given under the Rules is discretionary which discretion must of necessity be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably aected by the pending litigation is a necessary and proper party, and should be enjoined.” 24. What emerges from the cited provisions and case law revolving around them is a system that eschews frivolous technicalities that may eventually bloat the justice system with proceedings regarding joinder that may waste precious judicial time that would have otherwise been employed on nal determinations of suits on their merits. 25. It is important to note that the Magistrate canvassed the issue of some corporate entities of which the respondents were said to be directors or members, yet despite the provisions of Order 1 Rule 9 and Order 1 Rule 10 of the Civil Procedure Rules whose eect is to preserve the suit awaiting the correction of matters regarding joinder, he went ahead and applied the draconian measure of dismissal, which in the opinion of this court was a serious self-misdirection the matter. 26. In conclusion, I nd that the ground upon which the preliminary objection was sustained did not amount to a pure point of law as envisaged in Mukisa Biscuit case [supra]. The trial magistrate was compelled to refer to factual matters, including the status and capacities of the Respondents, before arriving at his decision. This in itself ought to have signaled that the objection could not properly stand as a preliminary point of law and should have been dismissed at the outset. 27. Consequently, the appeal is merited and hereby allowed. The ruling of the learned magistrate delivered on 26th August 2024 in Kili Chief Magistrate’s Civil No. E242 OF 2024 and all consequential orders are hereby set aside. The suit in Kili Chief Magistrate’s Civil No. E242 OF 2024 be reinstated for hearing by a magistrate other than Hon D. Sitati, SRM. The appellant shall be at liberty to amend the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18582/eng@2025-11-20 6

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plaint in Kili Chief Magistrate’s Civil No. E242 OF 2024 if need be, within 21 days from the date of receipt of the lower court le by the Kili Magistrate’s Court of which the appellant shall be duly notied; the costs of the present appeal and the costs of the preliminary objection dated 24/6/2024 in the lower court shall be borne by the respondents. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 20TH DAY OF NOVEMBER 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18582/eng@2025-11-20 7

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