I. Preliminaries.
1. The Judgement of this Honourable Court pertains to the Appeal lodged by ALI HASSAN MWASARIA, the Appellant herein against the 1st , 2nd & 3rd Respondents herein. Being aggrieved by the decision of the Lower Court in the ELC Suit No 39 of 2019 at the Principal Magistrate’s Court Kwale delivered on 15th May, 2024, the Appellant instituted the Appeal through filing of a Memorandum of Appeal dated 17th May, 2024 and a 341 pages Record of Appeal dated 15th November, 2024.
2. Procedurally, at the preliminary stage, the appeal was admitted and directions on its disposal was taken in the presence of the parties pursuant to the provisions of the Section 79B of Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010 thereof. It was resolved that the appeal be disposed of by way of submissions.
II. The Appeal
3. As already stated, the Appellant filed a Memorandum of Appeal dated 17th May 2024 and the Records of Appeal which were premised on the following grounds:-
a) That the Learned Trial Magistrate erred in law and in fact in holding that the preliminary objection raised by the Appellant dated 13th October 2020 on the jurisdiction of the trial court was overtaken by events
b) That the Learned Trial Magistrate erred in law and in fact in declining to give the appellant a chance to argue his preliminary objection on its merits
c) That the Learned Trial Magistrate erred in law and in fact in failing to acknowledge that a notice of preliminary objection can be raised at any stage of proceedings
d) That the Learned Trial Magistrate erred in law and in fact in directing that the case proceeds despite having knowledge that the preliminary objection raised by the Appellant was on the jurisdiction of the court
e) That the Learned Trial Magistrate erred in law and in fact failing to acknowledge that jurisdiction is everything and once it is lacking, the concerned court is required to down its tools forthwith as it was enunciated in the celebrated case of “Owners of the Motor Vessel Lilian “S” - Versus - Caltex Oil[Kenya] Limited [1989] KLR 1
f) That the Learned Trial Magistrate erred in law and in fact in giving orders that inhibit the Appellant from right to access to justice
4. The Appellant prayed for judgement against the Respondents for the following orders; -
I. This appeal be allowed with costs to the Appellant
II. An order do issue that the ruling of the Kwale Principal Magistrates court in PM ELC 39 of 2019 delivered on 15th May 2024 that the preliminary objection raised by the Appellant dated 13th October 2020 has been overtaken by events and the suit proceeds as an unopposed claim against the appellant, be set aside.
III. An order do issue that the preliminary objection raised by the appellant dated 13th October 2020 is properly on record and that the preliminary objection be heard and determined first before proceedings with the substantive suit
IV. Alternative to prayer 3 above, this court to issue an order that the preliminary objection raised by the Appellant dated 13th October 2020 is properly on record and to proceed and allow the preliminary objection to the effect that the Kwale Principal Magistrates Court lacks the requisite jurisdiction to hear and determine the suit
V. Judgement be entered in favour of the Appellant against the Respondents as prayed.
III. Submissions
5. On 30th January 2025 in the presence of all the parties whereby they were directed to canvass the appeal by way of written submissions. Subsequently, both the Appellant and the Respondent complied.
6. On 25th March 2025 the file was placed before court for highlighting of submissions. Nonetheless, on the material date, the Learned Counsel for Appellant intimated to court that the submissions were comprehensive and hence a Judgement date was set for 26th May 2025. Eventually, it was delivered on 20th June, 2025 accordingly.
A. The Written Submission by the Appellants
7. Through the firm Law of Messrs. Stephen Oddiaga & Company Advocates, the Appellant filed their written dated 12th February, 2025. M/s. Mwanzia Advocate commenced the submissions by providing the Honourable Court with a detailed background of the matter. The Learned Counsel averred that the Kwale PMCEL No 39 of 2019 was set to come up for defence hearing on 15th May 2024 when the Appellant brought to the courts attention of a pending preliminary objection dated 13th October 2020. That the preliminary objection was on the jurisdiction of the Principal magistrate court over the suit property Kwale/Ukunda ADJ/994 which was valued at a sum of Kenya Shillings Seventeen Million (Kshs. 17,000,000/-). The valuation report to that effect was before court.
8. The Learned Counsel submitted that the preliminary objection was still pending before court having not been heard or determined by the court. However, according to the Counsel, when the matter was brought to the attention of the court, the Hon Magistrate was of the view that the objection had already been dealt with and indeed a ruling over it delivered on 9th September, 2020.
9. But the Appellant asserted that there ought to have been a mix up on proceedings as the ruling alluded to as having been delivered on 9th September, 2020 was by Hon Wambugu on a different preliminary objection dated 17th July 2020. The said objection had been filed by the Respondent’s advocate to the effect that the Appellant’s Advocate was not properly on record as they had come in the matter after Judgement had been delivered contrary to the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010.
10. As a result of the afore said Ruling that all the documents filed by the Appellant were struck out and the Notice of Change of advocates dated 11th March 2020 together with the preliminary objection dated 7th April 2020. Subsequently the Appellant filed a consent for change of advocate dated 10th September 2020 and a preliminary objection dated 13th October 2020 on jurisdiction of the subordinate court.
11. As far as the Appellant was concerned, the preliminary objection dated 7th April, 2020 had never been heard until the 15th May 2024 when they moved court have it heard. This fact was fact disputed by the court. The Appellant maintained that the preliminary objection was properly on record and it ought to be heard by the court being the core of the Sub – ordinate Court’s proceedings – Jurisdiction.
12. The contention by the Learned Counsel was that the trial court erred in law and in fact by failing to appreciate that a preliminary objection could be raised at any time when the action was still active. Thus, there had been need to have the sub – ordinate Court forthwith provide direction setting down the hearing of the objection dated 13th October, 2020 on whether it had jurisdiction to entertain the matter or not. Thus, the court was urged to find that the trial court had erred in confusing the two preliminary objections of 13th October, 2020 with that of 17th July, 2020.
13. To buttress on this point, the Honourable Court was referred to several authorities on the jurisdiction of the court as follows:-
a) “Petro Oil Kenya Limited – Versus - Branded Fine Food Limited.
b) Floriculture International Limited – Versus - Central Kenya Limited & 3 Others [1995] eKLR.
c) Kenya Ports Authority – Versus - Modern Holdings [E.A] Limited [2017] eKLR.
14. In conclusion, the Honourable Court was urged to find that the Appellant’s preliminary objection dated 13th October, 2020 was properly raised and it ought to be determined before further proceeding with the matter. Additionally, that the trials courts directions of 15th May 2024 declining to set down the said preliminary objection was wrong taking into consideration that the objection was on jurisdiction.
B. The Written Submissions by the 1st Respondent
15. The 1st Respondent through the Law firm of Messrs. Odour Opalo & Co Advocates filed their written submissions dated 14th February 2025. Mr. Opalo Advocate likewise provided Court with a brief history on litigation of the matter. The Counsel submitted that the suit was filed on 24th May, 2019. It was accompanied by an application dated 25th April 2019. Despite service effected on 17th July 2019 the Appellant never entered appearance and the application was thus allowed by the court.
16. On 11th September 2019, the Appellant filed an application dated 25th August 2019 seeking to strike out an already determined application. That by that time the Respondents had already complied and were ready to have the matter provided with a hearing date. Accordingly, on 15th April, 2020, the matter was then set for formal proof. However, prior to that then a preliminary objection was filed by the law firm of Messrs. Oddiaga & Co Advocates challenging the jurisdiction of the sub – ordinate court.
17. It was stated that the said Law firm of Oddiaga & Company Advocates came on record on the face of an interlocutory Judgement against the Appellant and therefore the preliminary objection filed on 7th April 2020 alongside all those documents filed by the said firm ought to be struck out.
18. The 1st Respondent maintained that the court delivered a ruling with respect to the application dated 28th October 2020 for setting aside the interlocutory Judgement and which was never appealed against. That the said ruling granted the Appellant 7 days to file a defence, to bear throw away costs of a sum of Kenya Shillings Thirty Five Thousand (Kshs. 35,000/=) within 14 days and in default the orders were to lapse.
19. Eventually, the Appellant filed a Statement of Defence in January 2022. That the order allowing them to file a defence had a shelf life of 14 days and by the time the defence was filed the same had lapsed. For that reason, the 1st Respondent submitted that the Appellant has no right of audience.
20. On what constitutes a preliminary objection. The Learned Counsel submitted that the ingredients of what constitutes a preliminary objection were laid out in “the Mukisa Biscuit case”. That the value of the property was a matter of fact that would needed the exercise of judicial discretion and invite the speculation on the actual value of the suit property. That the valuation report presented by the Appellant was done contrary to the orders of 17th July 2019 which barred the parties from dealing with the suit property. Thus, the valuation report was termed as being null and void in terms of its inadmissibility before court.
21. On whether the appellate court could interfere. The Learned Counsel averred that the duty of the 1st appellate court was to re-evaluate the evidence before it. That this had not been met by the Appellant. Further that the appellant court may only interfere with a decision of the lower court and the same was not exercised judiciously. The 1st Respondent submitted that he had demonstrated that judicial power was exercised judiciously in this particular case and that the learned trial magistrate was clearly right both in facts and in law applicable in the instant proceedings. In the long run, the court was urged to dismiss the appeal with costs.
IV. Analysis and Determination
22. I have keenly considered the appeal as filed by the Appellant herein, the disputed objection raised dated 13th October 2020 by the Appellant/Objector herein, the rival and detailed written submissions, the myriad authorities cited by all the parties, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
23. In order to reach at an informed, reasonable and fair decision on the matter, the Honourable Court has crafted the following four (4) issues for its determination. These are: -
a) What is the law on preliminary objections in relation to the instant appeal?
b) Whether the preliminary objection raised by the Appellant dated 13th October 2020 was overtaken by events.
c) Whether the parties were entitled to the relief sought from the appeal.
d) Who bears the costs of the appeal?
ISSUE No. a) What is the law on preliminary objections in relation to the instant appeal?
24. Under this Sub – heading, the Honourable Court wishes to critically examine the issue of Preliminary objection taking that it forms the main pith and substance of the impugned appeal preferred before it by the Appellant. According to the Black Law Dictionary a Preliminary Objection is defined as being: “In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”. The threshold of a preliminary objection was set out by the Court of Appeal in the celebrated case of “Mukisa Biscuit Manufacturing Co. Limited - Versus - West End Distributors Limited (1969) EA 696” as follows:
“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.”
25. The Court went further to note that: -
“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 issues, and this improper practice should stop.
26. The apex court in the case of “Hassan Ali Joho & Another – Versus - Suleiman Said Shahbal & 2 Others [2014] eKLR” re-affirmed the principle as set out in the Mukhisa case by stating 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 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 has to be ascertained or if what is sought is the exercise of judicial discretion’.”
27. Additionally, the Tanzania Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & Others – Versus - Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, J.A., Ramadhani, C.J. Rutakangwa, JJA)”, put the issue of preliminary objections in a more succinct manner: -
a. “At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists of a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.”
28. Similarly, the court in the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & Another [2016] eKLR”:- explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “inter alia”:-
i.A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
ii.A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
iii.The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
29. In the instant appeal, the preliminary objection herein is hinged on the jurisdiction of the trial court to hear and determine the suit before it. It is trite law that Jurisdiction is central in every litigation before court, without jurisdiction the court of law cannot take any step in making a finding of a matter before it. The Supreme Court stated in the Matter of Interim Independent Electoral Commission [2011] eKLR as follows:-
[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ – Versus - Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
30. The fact that the preliminary objection raised herein is on the jurisdiction of the trial court to determine the instant dispute informs the court to further interrogate the magistrate’s court jurisdiction to hear and determine the suit before it. Subject to the provision of Section 9 (a) of the Magistrates Act, a magistrate’s court shall in the exercise of the jurisdiction conferred upon it by Section 26 of the Environment and Land Court Act, No. 19 of 2011 and subject to the pecuniary limits under Section 7 (1), hear and determine claims relating to;
i. Environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.
ii. Compulsory acquisition of land.
iii. Land administration and management.
iv. Public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
v. Environment and land generally provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates’ Courts Act.
31. From the above, it is confirmed that magistrates are empowered to handle land cases. However, the Appellant maintains that the trial court lacks the pecuniary jurisdiction to determine the dispute before it based on a valuation report annexed on the record of appeal at page 238 of the record of appeal. The provision of Section 7 of the Magistrate’s Act sets out the pecuniary jurisdiction of the Magistrate Court as follows: -
“7. (1) A Magistrate's Court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—
(a)twenty million shillings, where the Court is presided over by a chief magistrate;
(b)fifteen million shillings, where the Court is presided over by a senior principal magistrate;
(c)ten million shillings, where the Court is presided over by a principal magistrate;
(d)seven million shillings, where the Court is presided over by a senior resident magistrate; or
(e)five million shillings, where the Court is presided over by a Resident Magistrate.
(2) ….”
32. Having already discussed above herein what constitutes a proper preliminary objection, further guided by the above authorities and statute, the court opines that the issue of jurisdiction is a pure point of law. Therefore, I discern that the preliminary objection before the lower court was a proper and merited.
ISSUE No. b). Whether the preliminary objection raised by the Appellant dated 13th October 2020 was overtaken by events
33. Under this Sub – heading, the Honourable Court will endeavour to examine the indepth surrounding facts and inferences of the case at hand. From the record, this is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The Court of Appeal outlined the principle in the case of “Susan Munyi – Versus - Keshar Shiani (2013) eKLR” as follows:
“As a first Appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
34. Additionally, in the case of:- “Gitobu Imanyara & 2 Others – Versus - Attorney General [2016] eKLR” the Court held that:
“this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
35. The above principle was similarly outlined in the case of:- “Abok James Odera t/a A. J Odera & Associates – Versus - John Patrick Machira t/a Machira & Co Advocates [2013] eKLR” as follows:-
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
36. Without prejudice to any parties herein, from the face value, and clearly this was a case of a mix up and/or confusion of facts meted in the proceedings before the Sub – ordinate Court. Ideally, the quagmire ought to have been sorted out by all the parties and with the mediation of the Judicial Officer sitting and mutually arriving at an amiable solution.
37. But, Nay far from it!. For some unclear reason, that could not happen and thus necessitating the preference of the impugned appeal before this Court. Surely, I strongly hold it could have been avoided and hence saved precious Judicial resources.
38. Nonetheless, in a nutshell the Appellant’s case is that, the 1st Respondent instituted the suit before the Sub – ordinate Court seeking for orders against the Appellant, the 2nd and 3rd Respondents claiming that he was the registered absolute proprietor of land that parcel of land known as land Reference Numbers number Kwale/Ukunda/994 the suit property herein. Further, the 1st Respondent sought for permanent injunctive orders against the Appellant with regard to use of the suit property together with eviction orders. Lastly, the 1st Respondent sought for rectification of the register to the suit property cancelling all entries on the same and his restoration as the registered absolute proprietor of the suit property.
39. In the pendency of the hearing and determination of the suit, the Appellant filed a preliminary objection challenging the jurisdiction of the trial court to determine the suit based on the value of the suit property. However, it is noteworthy that then advocate on record for the Appellant was not properly on record and the documents filed by counsel were all struck out. Consequently, the Appellants Counsel filed a proper application to be placed on record and the same was allowed. The Appellant then filed the preliminary objection which according to the trial court, had already been determined. The Appellant stated that there seemed to be an uncertainty over two preliminary objections one dated 17th July 2020 challenging the Appellant’s counsel appointment in taking over the matter and which was decided by court the other objection dated 13th October 2020 raising issues on the jurisdiction of the Trial Court to entertain the suit and which is still pending before court. This appeal challenges the trial court orders stating that the preliminary objection dated 13th October 2020 had already been heard and determined. From the ruling, the trial court ordered that the preliminary objection dated 13th October 2020 had already been dealt with by the ruling delivered on 9th September 2020 which is misinformed and a travesty of justice. It is stated that the preliminary objection was never determined and whatever was addressed by the court in its ruling of 9th September 2020 was a different preliminary objection on the Appellant’s Counsels being improperly on record.
40. All said and done, I have had the chance to critically peruse the contested ruling which was on page 341 of the Record of Appeal. It was a one paged, precise and concise on the contested issue which the court has learnt was on the Appellant’s Counsel presence on record. The trial court in its wisdom made a finding that Judgement had already been rendered in the matter and counsel Steve Oddiaga ought to have first sought the leave of court before coming on record pursuant to the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010.
41. I need not say more over the issue. From the very onset, the record has in my opinion exonerated the Appellant. For that reason, it is clear as the slender than the hair strand that held the sword of the imperial Kind Dionysiuos over the head of Damocles, the preliminary objection dated 13th October 2020 is still lingering before the Trial Court. It is yet to be heard. It has to be disposed off before the matter proceeds on further.
ISSUE No. c). Whether the parties herein were entitled to the reliefs sought from the preferred Appeal.
42. This court has already made the finding the contested preliminary objection is yet to be heard and determined. The court cannot however at this point usurp the powers of the trial court by making a determination over the preliminary objection before the said objection is heard by the court it was filed before. This will be akin to putting the horse before the cart. The 1st Respondent has raised the legitimacy of the preliminary objection before court and the pleadings filed by the appellant before the trial court. These are issues I cannot interfere with at this juncture. It is upon the trial court to interrogate the timelines it had set for compliance and render itself based on its discretion to allow pleadings file out of time. This will include the defence and the list of documents constituting the impugned valuation report.
ISSUE No. d). Who will bear the costs of the Appeal?
43. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award granted to a party at the conclusion of any legal action and proceeding at the conclusion of the litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 provides that costs follow an event. By the event it means the result or outcome of the legal action.
44. In the instant appeal, taking that there must have been an overly oversight on the part of the trial court in terms of validating whether the preliminary objection had been heard or not the court will not make any orders on costs.
V. Conclusion & Disposition
45. Ultimately in view of the foregoing detailed and expansive analysis to the appeal, this court opines that the appeal partly succeeds. For avoidance of doubt, the Honourable Court proceeds to make the following orders hereinbelow: -
a) THAT Judgement be and is hereby entered in favour of the Appellant herein.
b) THAT an order made that the ruling of the Kwale Principal Magistrates court in PM ELC 39 of 2019 delivered on 15th May 2024 that the preliminary objection raised by the appellant dated 13th October 2020 had been overtaken by events and the suit proceeds as an unopposed claim against the Appellant be and is hereby set aside.
c) THAT an order be and is hereby issued that the preliminary objection raised by the appellant dated 13th October 2020 is properly on record and that the preliminary objection be heard and determined first before proceedings with the substantive suit
d) THAT the suit is referred back to the trial court for substantive hearing and determination of the preliminary objection dated 13th October 2020.
e) THAT the matter to be mentioned before the Principal Magistrate Court on 9th July, 2025, for further direction on the expeditious disposal of the suit WITHIN THE NEXT 180 DAYS thereof.
f) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…..20TH ……. DAY OF ……. JUNE …….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) M/s. Mwanzia Advocate for the Appellant.
c) Mr. Oduor Opalo, Advocate for the Respondent.