REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CIVIL CASE NO. E009 OF 2024

IN THE MATTER OF THE ADVOCATES ACT, CAP 16 OF THE LAWS OF KENYA

AND

IN THE MATTER OF ORDER 52 RULE 4 OF THE CIVIL PROCEDURE RULES, 2010

BETWEEN

1. FLORENCE KAMANTHE MAINGEY
2. PAUL MAINGEY
3. LOISE KAMBUA MAINGEY..........................................................APPLICANTS

AND

ONESMUS GITHINJI GACHUHI

TIA ONESMUS GITHINJI & COMPANY ADVOCATES........................RESPONDENT

RULING

Brief facts

1. The matter before this court for determination is the Respondent’s Amended Notice of preliminary objection dated 19^th July 2024. The Respondent contends that this court lacks jurisdiction to entertain the Applicants’ Originating Summons dated 30^th April 2024 as it is misconceived and an abuse of the court process. That the Applicants’ suit is ill conceived, incompetent, scandalous, frivolous, and vexatious. It is in the interests of justice that it be struck out with costs to the Respondent.
2. The preliminary objection raises the following grounds:-
3. 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 Advocate- Client relationship between them.
4. That the Applicants have no grant of representation of the Estate of John Ian Mainey (deceased).
5. 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.
6. 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.
7. That on 12^th 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.

3.      Directions were issued on 19^th 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 5^th December 2024 filed by Onesmus Githinji & Company Advocates while the Applicant’s submissions are dated 17^th 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 19^th July 2024.

1. 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.
2. 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.
3. 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 >>></><><><>“></></><><>><>>> >></><>>>><>><>></><><>‘></><><><><><> >></><><> ></></><><>></></></></><><> >><>>>>> ><> >>></><>>>></><> ></></><><><>“></></><><>></><><>></><><>>> <>> (<><>></>).</><>><>>> <>>>></><>>> ></><><><>“></></><><>>> <>> >></><>></><><>></><>><><>></><><>></><><>><>> (> ></><><><>“…..></></><>><><><>“></></><> href="http://kenyalaw.org/caselaw/cases/view/93989/" target="_blank">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”.

   27.    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”.

   28. 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 Oraro- Vs-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”.

   29.    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.

   30.    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 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 12^th June 2023, while acting on Applicants' complaint, Kamukunji Police Station Criminal Investigation Officers raided the Respondent's office and illegally arrested him.

   31.    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.

   32.    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 1^st 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 1^st 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”.

   33.    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 1^st 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”.

   34.    Accordingly, this Court finds that the amended preliminary objection dated 19^th July 2024 is without merit and the same is dismissed entirely with costs to the Applicants.

   35.   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 30^th April 2024 in totality.

   36.    It is hereby so ordered.

   RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 20^TH MARCH 2025  

   NOEL I. ADAGI

   JUDGE

   DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 20^TH MARCH 2025

   In the presence of :

   Mr. Rotich h/b for Mr. Kyalo for Applicants

   Mr. Taifa for Respondent

   Milly Grace..... Court Assistant