[1] Upon being granted leave on 8th August 2023, the applicant, Evans Ngaira Mbaliwa, filed a substantive judicial review application dated 11th August 2023. The application was brought under Sections 8 and 9 of the Law Reform Act, Chapter 26 of the Laws of Kenya, Sections 1A 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Rule 3 of Order 53 of the Civil Procedure Rules, 2010, for the following orders:
[a] An order of Mandamus to cause the Directorate of Criminal Investigations to investigate, arrest, detain and prosecute the respondents.
[b] Any other order consequential or incidental relief be made to meet the ends of justice.
[c] Costs of the application be provided for.
[2] The application was premised on the grounds that he was a tenant of the 2nd respondent when distress proceedings were commenced against him by the respondents without any prior notice. In his supporting affidavit, he averred that the 1st respondent, as a mere cleaner at the premises, had no authority to give instruction to the 3rd or 4th respondents to commence the impugned proceedings. He further averred that the 4th respondent did not hold a practicing certificate at the time the proceedings were commenced vide Mombasa Senior Resident Magistrates Miscellaneous Applications No. 495 of 2022 and No. 57 of 2023. The applicant therefore averred that the 3rd and 4th respondents acted dishonorably; and therefore needed to be investigated and prosecuted.
[3] In his Replying Affidavit, the 3rd respondent confirmed that he is licensed auctioneer carrying on business in the name and style of Swiftway Auctioneers. He averred that he was instructed by the 2nd respondent, who was the applicant’s landlord, to levy distress for recovery of rent arrears. As the house remained locked for several months, it became necessary to seek a break and open order from the court. That was the reason he filed Mombasa SRM Miscellaneous Application No. 495 of 2022.
[4] Upon realizing that the applicant had inherent deficiencies, he had it withdrawn and another Miscellaneous Application No. 57 of 2023 filed in its place. He added that, upon obtaining the requisite orders, he proceeded and levied distress on the applicant’s movable properties. He further stated that he acted in accordance with the provisions of Rule 3 of Order 25, Civil Procedure Rules and therefore this suit is an abuse of the court process, considering that the applicant also filed a complaint against him before the Auctioneer Board. The 3rd respondent annexed copies of several documents to his affidavit to back up his assertions.
[5] In addition to the Replying Affidavit the 1st 2nd and 3rd respondents filed a Notice of Preliminary Objection to the application dated 11th August 2023 on the following grounds:
[a] The Notice of Motion is fatally defective for infringing the procedure set out in Farmers Bus Service & others v Transport Licensing Appeal Tribunal [1959] EA 779.
[b] The proper respondent to the suit is the Directorate of Criminal Investigations against which the relief is sought and yet had not been enjoined to the proceedings.
[c] In so far as the prerogative order of mandamus to compel the would be respondent to take action goes, the application is premature and an abuse of the court process as there is no demonstration that either a distinct demand for action against the would be respondent was made; or that a complaint was lodged with the entity; or proof given of an unequivocal refusal in response to such demand or complaint.
[d] Matters borne out in the verifying affidavit are narrations of events in respect of proceedings before other courts, for which relief lies elsewhere.
[e] On the face of it, no basis, sufficient or at all, has been made out for grant of the relief sought.
[6] The application, though filed by the applicant in person, was prosecuted by his counsel, Mr. Were, duly instructed by M/s Were Geoffrey & Company Advocates. It was urged by way of written submissions, pursuant to the directions given herein on 26th September 2023.
[7] The applicant file written submissions dated 2nd October 2023 in response to the Notice of Preliminary Objection filed by the respondents. He relied on Mukisa Biscuits Manufacturing Ltd v West End Distibutors Ltd [1969] EA 696, among other authorities, to buttress his argument that a preliminary objection ought to be a pure point of law arising from the pleadings filed by the parties. In his argument, the respondents’ Preliminary Objection is based on assumptions and contested facts and therefore ought to be dismissed.
[8] The applicant also submitted that the right to be heard being fundamental right cannot be curtailed. He therefore contended that he has the right to be heard on the merits of his application. He placed reliance, in this regard, on Eunice K Kibunga v R M Kibunga Civil Appeal No. 103 of 1996 and urged for the dismissal of the respondent’s Preliminary Objection.
[9] In response to the Notice of Motion dated 11th August 2023, the applicant filed separate written submissions dated 31st August 2023 in which he proposed the following issues for determination:
[a] Whether Robert Karuku Kimondo the cleaner and or caretaker had legal capacity to give instruction to levy distress.
[b] Whether Auctioneer Anthony Michael Mulwa acted in a manner befitting an officer of the court and or acted in accordance with such rules as prescribed for repossessing, attaching or selling any property.
[c] Whether Aron Wandera Odindiko, Advocate, practicing in the style of M/s Odindiko & Co. Advocates, was unqualified person at the time of drawing and filing Mombasa Miscellaneous Applications No. 495 of 2022 and No. 57 of 2023, respectively.
[d] Whether the Auctioneer is liable to compensate the complainant.
[e] Whether the Auctioneer is liable to pay costs to the complainant.
[10] It is manifest from the above list of issues that the applicant’s written submissions were entirely misguided, granted that this is a judicial review application seeking to have the Directorate of Criminal Investigation compelled to perform a public duty. I therefore find it unnecessary to include a summary of those submissions.
[11] The 1st, 2nd and 3rd respondents filed written submissions dated 23rd October 2023 through their counsel, Mr. Mwakisha, duly instructed by M/s Moses Mwakisha & Company Advocates. The respondents reiterated their stance that the application ought to have been made in the name of the Republic, yet in this instance the application was brought in the name of the applicant. The also submitted that although they were cited as the respondents, the order sought is intended to compel the Directorate of Criminal Investigations to institute investigations against them, yet the Directorate of Criminal Investigations is not a party to the application. In their view, at best, they ought to have been enjoined as interested parties. They relied on Farmers Bus Service & others v Transport Licensing Appeal Tribunal [1959] EA 779.
[12] The respondents further submitted that the order of Mandamus can only issue upon it being established that there was a public duty to act; that the applicant had made a demand for such action and that the public body refused to act. They relied on the decision of the Court of Appeal in District Commissioner of Kiambu v R and others, Ex Parte Ethan Njau [1960] EA 109 in which it was held:
“A distinct demand for action and its refusal is, as a general rule, a prerequisite for the grant of an order of mandamus; in the instant case it was doubtful if there had been a clear demand for the relief sought.”
[13] Accordingly, the respondent urged for the dismissal of the application dated 11th August 2023.
[14] It is now trite that a preliminary objection ought to be confined to issues of law. Hence, in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors [1969] EA 696, it was held:
"... 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..."
[15] Similar expressions were made in Oraro v Mbaja [2005] 1 KLR 141 by Hon. Ojwang, J. (as he then was) thus:
"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[16] It is therefore trite that, where a preliminary objection has been raised, it ought to be dealt with in limine, because of its capability of effectually disposing of the entire suit. But it is also the case that, in appropriate cases, a preliminary objection can be handled as a response to an application. This is manifest in the careful wording of Order 51 Rule 2 of the Civil Procedure Rules. It states:
“(1) Any respondent who wishes to oppose any application may file any one or a combination of the following documents —
(a) a notice preliminary objection: and/or;
(b) replying affidavit; and/or
(c) a statement of grounds of opposition;”
[17] Accordingly, not much turns on the applicant’s arguments that the the respondent’s Preliminary Objection was premised in part on disputed facts. Indeed, the directions given on 26th September 2023 were to the effect that the application and the Preliminary Objection be canvassed simultaneously. Accordingly, the parties complied and filed submissions in respect of both. The Court is therefore under obligation to dispose of the technical points first before getting into a consideration of the merits of the application; which is how I propose to proceed.
[18] Needless to say that Mandamus is a relief available to litigants under Article 23(3)(f) of the Constitution as well as Order 53 of the Civil Procedure Rules. Its scope was well explicated in Halsbury's Laws of England, 4th Edition, Volume 1 thus:
"The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual..."
[19] The Notice of Motion dated 11th August 2023 was brought in the name of Evans Ngaira Mbalilwa as the applicant. It seeks, inter alia, an order of Mandamus to compel the Directorate of Criminal Investigations to arrest, detain, investigate, and prosecute the respondents. It is not in dispute that the application was not brought in the name of the Republic as is required; nor is it contested that the Directorate of Criminal Investigations, the public entity sought to be compelled, has been cited as a party to the proceedings.
[20] In Farmers Bus Service(supra) and the court relied on the Court of Appeal case of Mohamed Ahmed v R [1957] E.A 523 where it was held:
“This recital reveals a series of muddles and errors which is not unique in Uganda and is attributable to laxity in practitioners’ offices and in some registries of the High Court. The appellant’s advocate appears to have failed entirely to realise that prerogative orders, like the old prerogative writs, are issued in the name of the crown at the instance of the applicant and are directed to the person or persons who are to comply therewith. Applications for such orders must be intituled and served accordingly. The Crown cannot be both applicant and respondent in the same matter”.
[21] It is noteworthy that the Farmers Bus Service(supra), the case solely dealt with the question of the intitule. In the instant matter, in addition to lack of proper form and there was non-joinder of a party against whom the order of Mandamus is sought. I agree entirely with the respondents that these omissions are fatal to the application and cannot be excused under Article 159 (2) (d) of the Constitution of Kenya as mere technicalities. In particular, the failure to enjoin the Directorate of Criminal Investigations is a substantive one that goes to the root of the application.
[22] I find succor in the decision of Hon. Odunga, J. (as he then was) in the case of Christopher Musau v Attorney General [2013] eKLR in which he held:
“…It is clear from the title of the proceedings herein that the Motion herein is not an epitome of impeccable, elegant or paragon drafting. Whereas the person named as the defendant is the Hon. Attorney General, the orders being sought are against the Permanent Secretary, Office of the President. Secondly, the parties to these proceedings are indicated as plaintiff and defendant rather than applicant and respondent. While this Court may have been amenable to excuse the latter error, the fact that the person against whom the orders are sought in these proceedings is not a party to the Motion cannot be excused.
[23] The importance of rules of procedure was aptly captured by Hon. Kiage, JA in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR thus:
“I am not in the least persuaded that Article 159 of the Constitution and the Oxygen Principles which both command Courts to seek to do substantial justice in an efficient, proportionate and cost effective manner…were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice…it is in the even-handed and dispassionate application of rules that Courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity.”
[24] For the foregoing reasons, it is my finding that the Notice of Motion dated 11th August 2023 is incompetent and it is hereby struck out. Each Party to bear their costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF OCTOBER 2024