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JudgmentDR WILLIAM NYAKWADA T/A NAKSONS KENYA LTD VS Homabay County2 min read

DR WILLIAM NYAKWADA T/A NAKSONS KENYA LTD VS Homabay County

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 Judicial Review application dated 3rd November 2023 offends the provisions of section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules.
  3. That the substantive Judicial Review application dated November 3rd, 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 for the death of the Certificate of Order against the Government as required under Order 29 Rule 3 and the violation of numerous statutory laws.
  5. That the orders sought in the substantive Judicial Review application are against parties not joined to the suit and, therefore, violate the principles of fair hearing.
  6. That the impugned default trial magistrate Judgment is subject to review, and, therefore, the instant Judicial Review application ought to be dismissed with costs.
  7. The preliminary objection was opposed on the following grounds:
  8. That there is no appeal or application for review in respect of the subordinate’s court file number E039 of 2022 that gave rise to the instant judicial review.
  9. That there was no misjoinder.
  10. 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. It was contended that the first respondent was wrongfully misjoined. 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. The respondents have argued that a certificate, as envisaged under Section 21 of the Government Proceedings Act, was not attached.  In the case of Republic vs Permanent Secretary Office of The President Ministry of Internal Security & another Ex-Parte Nassir Mwandihi [2014], eKLR Odunga J (as he then was) held:

The said elaborate procedure is further meant to give adequate notice to the Government to make arrangement to satisfy the decree. The procedure, in my view, is not meant to relieve the Government from meeting its statutory obligations to satisfy decrees and orders of the Court.

  1. The record contradicts the respondent's contention that the certificate was not attached.  Even if they had proved that the same was not attached, this cannot be the basis for defeating the pursuit of a genuine debt.
  2. The preliminary objection lacks basis and is dismissed with costs.

Delivered and signed at Homa Bay this 11th day of April 2024

    DR WILLIAM NYAKWADA T/A NAKSONS KENYA LTD VS Homabay County DR WILLIAM NYAKWADA T/A NAKSONS KENYA LTD VS Homabay County