Florence Kamanthe Maingey & 2 others v Onesmus Githinji Gachuhi T/A Onesmus Githinji & Company Advocates

3. a. That the Applicants have no locus standi to institute the suit against the Respondent under order 52 Rule 4 of the Civil Procedure Rules, 2010 as there has never existed an AdvocateClient relationship between them. b. That the Applicants have no grant of representation of the Estate of John Ian Mainey (deceased). c. That the Applicants are in breach of Section 15 of the Civil Procedure Act. The cause of action and the place of residence of the Respondent, where he carries on business, and works for gain is in Nairobi and not Machakos. d. That the decretal sum awarded to John Ian Maingey (deceased) in Milimani HCCC No. 171 of 2016 Joseph Rashidi Masengo & 2 Others vs Muthoga Gaturu & Co. Advocates was remitted to him in full by the Respondent in accordance with his instructions. e. That on 12th June 2023, while acting on Applicants' complaint, Kamukunji Police Station Criminal Investigation Officers raided the Respondent's office and illegally arrested him. They forcefully demanded the deceased's file on the matter. At the police station, the officers in the presence of the Applicants checked the correspondence and found the discharge note signed by the deceased confirming settlement of his award. They then released the Respondent unconditionally but detained the file pending further investigations. Directions were issued on 19th November 2024 that the Preliminary Objection be canvassed by way of written submissions. The record shows both parties complied by filing submissions. The Respondent’s submissions are dated 5th December 2024 filed by Onesmus Githinji & Company Advocates while the Applicant’s submissions are dated 17th December 2024 filed by Kyalo & Company Advocates. The Respondent’s Submissions 4. The Respondent submits that they oppose the institution of this suit on points of law as raised in their amended Notice of Preliminary Objection dated 19th July 2024. 5. That the points of law are on locus standi, jurisdiction of the court, abuse of the court process, subject matter has been overtaken by event, and that the Applicants are moving this Honourable Court with unclean hands. 6. They submit that this suit can be disposed by way of preliminary objection as the points of law raised are compelling grounds of law that renders this suit incompetent, ill-conceived and bad in law. They have relied on the famous case of Mukisa Biscuits Manufacturing Ltd —vs- West End Distributors (1969) EA 696 on preliminary objection. 7. One of the grounds of law under which they object the institution of this suit is the jurisdiction of this court to hear the suit. If it is to be considered at this stage of the proceedings, it can dispose of this suit without going to trial. They are guided by the decision in Stringer Muzungu Lumwe & another v Shida Tuji Tsuma & 2 others [20211 eKLR where it was held that: “ When a preliminary objection is raised on the jurisdiction of a court to hear and determine a matter, then the same must be heard and determined first as it might have the effect of determining the same by striking out leaving no suit to be heard. The issue of jurisdiction is a pure point of law and if successfully raised it has the potential of disposing of the suit at a preliminary stage”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14335/eng@2025-03-20 2

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8. The Respondent submits that there has never existed an Advocate-Client Relationship between any of the Applicants and the Respondent herein. Therefore, the Applicants have no capacity to institute this suit in their name. 9. Further, there is no proof that the Applicants are legal personal representatives of the deceased and the same cannot be assumed. They argue that the Applicants have not produced before this Honourable Court a limited grant for purposes of suing. They relied on the case in Re Estate of Malai alias Lili (Deceased) [2017] eKLR where the court cited with approval Alexander Mutunga Wathome -vs- Peter Lavu Tumbo & Another [2015] eKLR (Machakos Succession Cause No. 80 of 2011). 10. The Respondent also submits that this court lacks territorial jurisdiction to hear and determine the Originating Summons dated 30th April 2024 as filed by the Applicants. 11. That the governing statutory legislation on this issue are Sections 11, 12, 13, 14, 15, and 16 of the Civil Procedure Act Cap 21, Laws of Kenya. 12. They heavily place reliance on Section 15 of the Civil Procedure Act which provides as follows. ‘Subject to limitation aforesaid every suit shall be instituted in a court within the local limits of whose jurisdiction: a. the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or b. any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or c. the cause of action, wholly or in part, arises. 13. They submit that the Respondent lives, carries on and works for gain in Nairobi within Nairobi County. Also, the cause of action arose in Nairobi as the award was made in a judgment in HCCC 171 of 2016, a matter that was filed, heard and determined in Nairobi. The place of instructions and remittance of the decretal sum was also in Nairobi. Clearly, if at all this suit was to be lodged against the Respondent in regard to the issue of the award, the place of suing must be in Nairobi. 14. They submit that the averment by the Applicant as made in paragraph 6 of the supplementary affidavit sworn on 14th November 2024 by Florence Maingey is incorrect as Section 12 heavily dwells on immovables, yet the subject matter is an award (a movable) that was made in Nairobi. The correct provision of law to be applied is therefore Section 15 of the Civil Procedure Act. 15. They submit that the Applicant's place of suing is unprocedural which strips off this court's jurisdiction to hear this matter. They cited the decision on jurisdiction in the Owners of Motor Vessel Lilian 's' V Caltex Oil Kenya Ltd 119891 KLR. 16. The Respondent further cited the case of Korea Nyamai v Neema Parcels Limited [2021] eKLR where Justice Nyakundi held that: “ The Civil Court is primarily and expressly required under the provisions of section 15 to protect the Defendant against the burdens of being sued and litigating in distant or inconvenience forums, in my view giving credence to this provision on territorial jurisdiction. It also acts to ensure that counties through their respective courts do not reach https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14335/eng@2025-03-20 3

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out beyond the limits imposed by their counties as core equal sovereign in our system of government. So, territorial jurisdiction need not be confused with person am jurisdiction over things or cause of action. Justice is idea of giving each person his or her own fair due process as a matter of constitutional right. 17. The Respondent urged the court to first consider the preliminary objection raised as the same warrant striking out of the entire suit without being heard on merit. The Applicant’s Submissions 18. The Applicants submit that there is no valid preliminary objection before court and they too cited the Mukisa Biscuit case (supra). 19. They submit that what is before court is not pure points of law. That a preliminary objection requires no factual evidence to make it evident. 20. With regards as to whether the Applicants have the locus standi to institute the suit, the Applicants submit that the original Claimant, the late John Ian Mbigey died on 5/1/2022. Part of his Estate he left behind was the claim for the proceedings of the settlement of HCC No. 171 of 2016 which proceeds were paid to the Respondent. The Applicants submit that only the holder of a valid and confirmed grant of representation has the right to pursue the Estate of the deceased person as provided for by Section 82 of the Law of Succession Act. They relied on the decision in Re Estate of John Gakinga Njoroge (2015) e KLR and Re Estate of Julius Minamo (Deceased) KEHC 10103 (KLR) 21. On whether the Applicants breached the provisions of Section 15 of the Civil Procedure Act, the Applicants cited the case of Jane Wambui Weru vs Overseas Private Inv. Corp & 3 Others, Nairobi High Court Civil Suit No. 83 of 2012 (2012) eKLR where it was held that: “ However, it is my view that the jurisdiction of the High Court an only be limited as provided by the Constitution itself purported limitation and any not founded on the Constitution is null and void, Therefore Section 12 and 15 of the Civil Procedure Act purported to limit jurisdiction. I would hesitate to exercise the powers bestowed upon the High Court under Article 2 (4) of the Constitution. The Civil Procedure Act, however, is not the instrument that confers jurisdiction upon the High Court”. 22. The Applicants also cited the case of Riddlesbax and Another v Robson and Others (1958) JFA 375, the East African Court of Appeal and Ken Arithi G Advocates v Salama Beach Hotel Limited Hang Ayzen Langer Touristic: & Technology GMBN & Accredo AG [2017] KECA 578. 23. The Applicants submitted that preliminary objection herein cannot bar the hearing and determination of the Originating Summons filed before this court. Analysis and Determination 24. The main issue for determination is whether the preliminary objection is sustainable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14335/eng@2025-03-20 4

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The Law Whether the preliminary objection is sustainable. 25. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is famous on the issue of what constitutes a preliminary objection. The court observed thus:“ …..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”. 26. Sir Charles Newbold P. stated:“ 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 if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”. 27. Similarly the Supreme Court in the case of Hassan Ali Joho & another v Suleiman Said Shabal & 2 others SCK Petition No. 10 of 2013 [2014] eKLR held that:“ 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”. 28. Further in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 others, [2014] eKLR the court held that:“ Thus”, a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record”. 29. A preliminary objection cannot be raised if any fact has to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. The Court will also take into account that the preliminary objection must stem from the pleadings and raises pure point of law, and should not deal with disputed facts nor should it derive its foundation from factual information. See the case of OraroVs-Mbaja(2005) 1KLR 141, where it was held that:“ Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”. 30. Evidently, a preliminary objection must be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with the point of law. 31. The preliminary objection by the Respondent has raised numerous matters which this court considers to be of facts and which are outside the ambit of a preliminary objection. The said matters of fact have to be ascertained through evidence. For instance: -Whether or not the Applicants have locus standi to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14335/eng@2025-03-20 5

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institute the suit against the Respondent under order 52 Rule 4 of the Civil Procedure Rules, 2010 and whether the subject matter has been overtaken by event.Whether or not the Applicants have a grant of representation of the Estate of John Ian Mainey (deceased).Whether or not the Applicants are in breach of Section 15 of the Civil Procedure Act, considering that the Respondent entered unconditional appearance in the suit.Whether or not the decretal sum awarded to John Ian Maingey (deceased) in Milimani HCCC No. 171 of 2016 Joseph Rashidi Masengo & 2 Others vs Muthoga Gaturu & Co. Advocates was remitted to him in full by the Respondent in accordance with his instructions.Whether or not on 12th June 2023, while acting on Applicants' complaint, Kamukunji Police Station Criminal Investigation Officers raided the Respondent's office and illegally arrested him. 32. Since a preliminary objection cannot be raised on disputed facts and all the matters raised by the Respondent hereinabove will require the probing of evidence, the Court finds and holds that what has been raised does not amount to a preliminary objection. 33 This court will have to ascertain the facts as pleaded by the Applicants and those to be raised by the Respondent if any by also probing the documents filed in the matter. In doing so, the Court will be probing evidence. In the case of Henry Wanyama Khaemba…Vs…Standard Chartered Bank Ltd & Another (2014) EKLR, the Court held that: “ That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objection. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections in improperly”. 34. Further in the case of George Kamau Kimani & 4 Others…Vs…County Government of Trans Nzoia & Another (2014) eKLR, the Court held that: “ I have considered the points raised by the 1st Defendant. All those points can be argued in the normal manner. They do not qualify to be raised as Preliminary Points. One cannot raise a ground of res judicata by way of Preliminary Objection. The best way to raise a ground of res judicata is by way of Notice of Motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. Professor Sifuna did not raise the issue of res judicata by way of Notice of Motion. Professor Sifuna only annexed a ruling in respect of a case which was struck out. This is not a proper way of issues which require ascertainment of facts by way of evidence. They cannot be brought by way of Preliminary Objection”. 35. Accordingly, this Court finds that the amended preliminary objection dated 19th July 2024 is without merit and the same is dismissed entirely with costs to the Applicants. 36. The issues raised in the amended preliminary objection by the Respondent will be considered as the court determines the merit of the Originating Summons dated 30th April 2024 in totality. 37. It is hereby so ordered. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 20TH MARCH 2025 NOEL I. ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14335/eng@2025-03-20 6

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JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 20TH MARCH 2025 In the presence of : ……................................................... for Applicants ………............................................. for Respondent ……………......................................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14335/eng@2025-03-20 7

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