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JudgmentBIOMAX AFRICA LIMITED VS2 min read

BIOMAX AFRICA LIMITED VS

High Court at Homabay High Court · · Kiarie W. Kiarie

  1. The respondents herein filed a Notice of Preliminary Objection dated the 20th day of November 2023. It was based on the following grounds:
  2. That the application dated 19th October 2023 offends the provisions of sections 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules.
  3. That the application dated 19th October 2023 offends the provisions of section 2, as read together with section 148 of the Public Finance Management Act, for misjoinder of parties.
  4. That the application is incompetent and fatal in law and therefore underserved of leave.
  5. The preliminary objection was opposed on the following grounds:
  6. That the preliminary objection does not point out the person who has been wrongly joined.
  7. The court became functus officio on the chamber summons application when leave was granted.
  8. A preliminary objection raises purely issues of law.  The Court of Appeal in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited (1969) EA. 696 (Sir Charles Newbold P) observed as follows:

... 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 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.

  1. The preliminary objection is premised on the issue of misjoinder. On the issue of Misjoinder Order 1, Rule 9 of the Civil Procedure Rules provides as follows:

No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

The respondents were aware of this provision and cited it in their submissions. Therefore, the ground of misjoinder cannot stand.

  1. Other than the respondent's averment that there was a failure to comply with section 21 of the Government Proceedings Act, the noncompliance was not demonstrated. Alleging noncompliance is not enough; it must be shown to the court's satisfaction.
  2. The preliminary objection lacks basis and is dismissed with costs.

Delivered and signed at Homa Bay this 9th day of April 2024

    BIOMAX AFRICA LIMITED VS BIOMAX AFRICA LIMITED VS