1. By a Notice of Motion dated 1/11/2024, the Intended Interested Party, Agnes Jebotibin Kibet, sought the following orders:
i. That this Application be certified as urgent and service be dispensed with in the first instance.
ii. That leave be granted to the Applicant to be joined in the proceedings as an Interested Party.
iii. That leave be granted to the Interested Party to file submissions to this Appeal.
iv. That costs of this Application be in the cause.
2. The Application is premised on grounds that;
a) That the proposed Interested Party is the spouse to the 1st Respondent who is the proprietor of all that land comprised in Title No. Pioneer/Ngeria Block 1 (EATEC)/9963 which is the subject matter of these proceedings and which property is the matrimonial home.
b) That the Applicant/Interested Party has a lawful interest/stake in this suit that seeks to take away her rights in the matrimonial home as spouse.
c) That the joinder will provide protection of the rights of the Applicant who would otherwise be prejudice and/or adversely affected in Law.
d) That joinder of the Applicant is a great resource to this Court to help it determine all the issues before it completely and prevent unending litigation.
e) The question of spousal consent is a question of Law and a right that exists in Law.
f) That the Applicant is not introducing a new matter but helping this Court determine all issues before it jurisdiction to join a party at this stage and deal with the issues wholesomely.
g) That unless the proposed Interested Party is joined in the suit, she will likely be prejudiced by these proceedings as her interests will not be adequately articulated.
h) That disallowing the application is tantamount to driving the Applicant away from the seat of justice and condemning her unheard hence a violation of her Constitutional rights.
3. The Application is further supported by the Affidavit sworn by the Intended Interested Party of even date.
Response
4. In response to the Application, the Appellant filed a Preliminary Objection dated 8/11/2024 citing the following grounds;
a) That this Honourable Court lacks jurisdiction to hear and determine the application dated 1/11/2024 and the same should be struck out with costs as the same offends the provisions of Section 65 of the Civil Procedure Act, Order 1 Rule 10, Order 18 and Order 42 of the Civil Procedure Rules, Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)
b) That the Applicant locus standi as she was not a party to the original proceedings in the lower Court.
c) That the Application is fatally defective for want of law and form in that the Intended Interested Party has failed to point to any legal authority or statutory provision that would justify her enjoinment as a party to the suit.
d) That the Applicant has not demonstrated a sufficient legal interest in the subject matter of the appeal which is merely speculative.
e) That the Applicant intends to raise a new claim and adduce new evidence which did not form part of the lower Court proceedings.
f) That the Application is belated and has long been overtaken by events.
g) That the Application is frivolous and an abuse of Court process and is intended to delay the proceedings.
5. The court directed that the Preliminary Objection be heard and determined first and that the same be canvassed by way of written Submissions. Subsequently, the Intended Interest Party filed her submissions on 24th November 2024 whereas the Appellant/Respondent filed theirs on 8th November 2024
The Intended Interested Party’s Submissions
6. Counsel for the interested Party submitted that the Appellant’s Preliminary Objection is mainly factual and does not meet the threshold set out in the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696. She submitted that the Appellant’s only purported point of Law in its Preliminary Objection is the 1st ground in which it has set out the sections of Law claimed to have been violated by the Intended Interested Party's Application for joinder. Counsel submits that the Appellant has not demonstrated how these provisions have been violated by their Application. That Section 65 of the Civil Procedure Act for example provides that appeals lie to the High Court. That Order 18 and Order 42 of the Civil Procedure Rules on the other hand deals with hearing of suits and examination of witnesses, and appeals generally, respectively whereas Order 1 Rule 10 deals with addition of parties to a suit and it is where the intended Interested Party’s Application is premised. That Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 allows a party to seek leave to be brought in as an interested party. Counsel maintained therefore that the Intended Interested Party's Application in no way violates the cited provisions of law and that the Appellant has not attempted to demonstrated how these provisions affects the jurisdiction of this court.
7. Regarding locus standi, Counsel submitted that the Appellant argues that the Intended Interested Party has no locus by virtue of the fact that she was not a party during the trial in the lower court. Counsel cited Order 1 Rule 10 of the Civil Procedure Rules, 2010, on joinder of parties and urged that the said provision states that a party may be added to a suit at any stage. Counsel submits that “any stage” includes even the Appellate Stage. Counsel cited the Supreme Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLRwhere the Court stated as follows;
“Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause”
8. Counsel urged that the import of the Supreme Court's decision is that, it doesn't matter that one was a not a party ab initio, it only matters that a party has an identifiable stake in the proceedings, will be affected by the decision of the court either way and that her interests will not be properly articulated without them. Counsel submitted that Intended Interested Party is seeking leave to be admitted to these proceedings hence the question of locus standi cannot arise at this point. That if she had filed an appeal or responded to this appeal without being made a party, the Appellant's argument on locus would have made legal sense but at this moment it doesn't.
9. Counsel maintained that the Intended Interested Party is a spouse seeking to protect the matrimonial property that will definitely be affected by the decision of this court, that her interests cannot be well articulated unless she is brought in the suit. Counsel submitted that this is demonstrated by how the issue of spousal consent was not even pleaded at the trial court and only showed up during cross examination of DW1. Counsel further urged that they did demonstrate in their Application that Intended Interested Party is not bringing in any additional grounds, that the Intended Interested Party is the spouse to the 1st Respondent, who is the proprietor of all that land comprised in Title NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9963 which is the subject matter of these proceedings, and which property is the matrimonial home and that Appellant in its Statement of Defence at the trial court did acknowledge at paragraph 4 of the said defence that the property used as collateral belongs to the 1st Respondent and that the same is a matrimonial home. Further that ground number 4 in the Memorandum of Appeal touches on the question of spousal consent that the Intended Interested Party seeks to help this court fully address hence it is not an introduction of a new matter.
The Appellant’s Submissions
10. On whether the Applicant has locus, Counsel submitted that the substitution and addition of parties to a suit is governed by Order 1 Rule 10(2) of the Civil Procedure Rules. Counsel contended that the Applicant has not stated with precision the statutory provisions and legal authority that justify her enjoinment thus offending the above said provision including Section 65 of the Civil Procedure Act. Counsel further submitted that in defining locus standi, the Court in Christopher Mutiembu Machimbo & 3 others v County Surveyor, Trans-Nzoia & 4 others [2022] eKLR, the Court stated;
"therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that locus standi is so important Court."
11. Counsel further relied on Order 42 Rule 22 of the Civil Procedure Rules, 2022 and submitted that a court can only join an interested party to proceedings as a respondent in the appeal if one was a party to the suit in the court from lacks locus standi to present the application since she was not a party in the trial court proceedings.
12. Counsel contended that the issue of spousal Consent never came up in the primary case at the lower Court and that the Applicant has raised a ground in which no evidence was adduced before the trial Court and further that not only did the parties not address the trial Court on the issue of spousal consent but also the trial Court did not pronounce itself on the said issue in its final determination. Counsel relied on the holding in the case of Kenya Hotels Limited v Oriental Commercial Bank Limited [2018] eKLR where the court in rejecting new evidence and grounds in appeal stated;
"Due to these fundamental concerns, the Courts have developed fairly elaborate principles that guide it in determining whether or not to allow a new point on appeal. In Openda v Ann,(supra) this Court identified some of the principles to include that all grounds of appeal must arise from issues that were sufficiently pleaded, canvassed, raised or succinctly made issues at the trial; that the point sought to be introduced must be consistent with the applicant's case as conducted in the trial court, not changing it into a totally different case; the matter must have be properly pleaded and the facts in support of the new point must have come out in the trial court; a new point which has not been pleaded or canvassed in the trial court should not be allowed to be taken on appeal, unless the evidence establishes beyond reasonable doubt that the facts before the trial court, if fully investigated, would support the point; where the question is one of law turning on the construction of a document, the new point may be allowed but only if the facts when fully investigated support the new plea."
13. Counsel submitted therefore that the application is belated as the interested party seeks to be enjoined one year after the Appeal was filed. In support of this submission, Counsel relied of the maxim of equity that "equity aids the vigilant and not the indolent and delay defeats equity" and also on the holding in the case of Ibrahim Mulgara Mwangi V Francis Ndegwa Mwangi [2014] eKLR where the court quoted the following passage from Snell's Equity by John MC Ghee Q.C. (31st Edition) at page 99:
"The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing."
14. On whether the Application is merited, Counsel submitted that Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party to mean a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the Court but is not a party to the proceedings or may not be directly involved in the litigation. Counsel added that Rule 7 states that such a person can apply to be joined as an interested party to the proceedings with the leave of Court and that the Court can also join an interested party to the proceedings on its own motion.
15. Counsel cited the case of Trusted Society of Human Rights Alliance v Mammate & 5 others [2015] eKLR (Supra); Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties): Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015(Consolidated)) [2016] KESC, where the court stated the elements applicable for the joinder as an interested party to include:
"The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court."
16. Counsel reiterated that the Applicant has not shown that she has a clear and identifiable stake in the matter particularly, how her rights or obligations will be directly impacted by the outcome of the appeal and that the Applicant has not sufficiently demonstrated any direct, substantial, or legal interest in the proceedings.
17. Counsel submits that the Applicant only seeks to be a party in proceedings with unexamined evidence without valid justification and could burden the Appeal Procedure Rules 2022 and that her true intentions are to present a fresh cause of action. Counsel relied on the holding in the case of Communications Commission of Kenya & 4others v Royal Media Services Limited & 7 others [2014] eKLR where the Supreme Court of Kenya held that;
"...The applicant now seeks to be enjoined in this matter, even though it was neither a party at the High Court nor at the Court of Appeal. The applicant has not demonstrated how the ends of justice would better be served by enjoining it in the appeal..."
"...We cannot exercise our discretion to enjoin a party that disguises itself as an Interested Party, while in actual fact merely seeking to institute fresh cause..."
Determination
18. Having carefully addressed my mind to the Preliminary Objections together with the submissions attendant thereto, it is my considered opinion that the issue for determination is;
whether Preliminary Objection dated 8th November 2024 as raised by Counsel for the Appellant/Applicant has merit.
19. As already submitted by Counsel for the interested party, a Preliminary Objection was defined in the case of Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 (supra) . This case is the locuss classicus on the definition of a Preliminary Objection. It defined it as follows:
“So far as I am aware, 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”.
20. Further Sir Charles Nebbold, JA went further to state thus;
“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 had 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 not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
21. For a preliminary objection to succeed therefore, it must raise a pure point of law. Anything that is not a such but turns out to be a point of fact or mixed fact and law would therefore not qualify to be a Preliminary Objection. What thein is a point of fact as opposed to a point of law? A "point of fact" refers to a specific, verifiable event or circumstance. It is a concrete detail or piece of evidence that is presented to a court to establish the truth of a matter. It is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. A point of fact therefore is rebuttable by way of evidence to the contrary. Points of facts form the foundation upon which legal arguments and decisions are built.
22. A "point of law" on the other hand is a legal principle that is to be interpreted or applied to the facts of a case and must be answered by applying relevant legal principles not facts. From my consideration of all the issues raised by the Appellant/Applicant in the Preliminary objection I find that the same are as equally verifiable and/or explainable as they are rebuttable by way of availing evidence to the contrary. In this regard then, they are mainly points of facts as opposed to points of law and in some instances are a healthy mix of both.
23. In light of the above, I am of the finding that the Objections raised by the Appellant do not fit into the definition of pure points of law but would qualify mainly as Grounds of Opposition which can be rebutted, denied, controverted, and/or contradicted by way of evidence to the contrary. This is particularly so because I note from the submissions by Counsel for the Appellant/Applicant on the said objection, he has delved at length on the merits and/or demerits of the facts deposed in the Interested Party’s Application for rejoinder. This only goes to underscore my finding that the objections raised are not only a mix of law but are largely comprised of facts. They therefore do not fit into the definition of a Preliminary Objection as envisaged in the Mukhisa Biscuit case.
24. In light of the above, it is my finding that the Preliminary Objection raised lacks merit and the same is dismissed with each party bearing their own costs.
Read Dated and Signed at ITEN on 2nd April 2025
i. That this Application be certified as urgent and service be dispensed with in the first instance.
ii. That leave be granted to the Applicant to be joined in the proceedings as an Interested Party.
iii. That leave be granted to the Interested Party to file submissions to this Appeal.
iv. That costs of this Application be in the cause.
2. The Application is premised on grounds that;
a) That the proposed Interested Party is the spouse to the 1st Respondent who is the proprietor of all that land comprised in Title No. Pioneer/Ngeria Block 1 (EATEC)/9963 which is the subject matter of these proceedings and which property is the matrimonial home.
b) That the Applicant/Interested Party has a lawful interest/stake in this suit that seeks to take away her rights in the matrimonial home as spouse.
c) That the joinder will provide protection of the rights of the Applicant who would otherwise be prejudice and/or adversely affected in Law.
d) That joinder of the Applicant is a great resource to this Court to help it determine all the issues before it completely and prevent unending litigation.
e) The question of spousal consent is a question of Law and a right that exists in Law.
f) That the Applicant is not introducing a new matter but helping this Court determine all issues before it jurisdiction to join a party at this stage and deal with the issues wholesomely.
g) That unless the proposed Interested Party is joined in the suit, she will likely be prejudiced by these proceedings as her interests will not be adequately articulated.
h) That disallowing the application is tantamount to driving the Applicant away from the seat of justice and condemning her unheard hence a violation of her Constitutional rights.
3. The Application is further supported by the Affidavit sworn by the Intended Interested Party of even date.
Response
4. In response to the Application, the Appellant filed a Preliminary Objection dated 8/11/2024 citing the following grounds;
a) That this Honourable Court lacks jurisdiction to hear and determine the application dated 1/11/2024 and the same should be struck out with costs as the same offends the provisions of Section 65 of the Civil Procedure Act, Order 1 Rule 10, Order 18 and Order 42 of the Civil Procedure Rules, Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)
b) That the Applicant locus standi as she was not a party to the original proceedings in the lower Court.
c) That the Application is fatally defective for want of law and form in that the Intended Interested Party has failed to point to any legal authority or statutory provision that would justify her enjoinment as a party to the suit.
d) That the Applicant has not demonstrated a sufficient legal interest in the subject matter of the appeal which is merely speculative.
e) That the Applicant intends to raise a new claim and adduce new evidence which did not form part of the lower Court proceedings.
f) That the Application is belated and has long been overtaken by events.
g) That the Application is frivolous and an abuse of Court process and is intended to delay the proceedings.
5. The court directed that the Preliminary Objection be heard and determined first and that the same be canvassed by way of written Submissions. Subsequently, the Intended Interest Party filed her submissions on 24th November 2024 whereas the Appellant/Respondent filed theirs on 8th November 2024
The Intended Interested Party’s Submissions
6. Counsel for the interested Party submitted that the Appellant’s Preliminary Objection is mainly factual and does not meet the threshold set out in the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696. She submitted that the Appellant’s only purported point of Law in its Preliminary Objection is the 1st ground in which it has set out the sections of Law claimed to have been violated by the Intended Interested Party's Application for joinder. Counsel submits that the Appellant has not demonstrated how these provisions have been violated by their Application. That Section 65 of the Civil Procedure Act for example provides that appeals lie to the High Court. That Order 18 and Order 42 of the Civil Procedure Rules on the other hand deals with hearing of suits and examination of witnesses, and appeals generally, respectively whereas Order 1 Rule 10 deals with addition of parties to a suit and it is where the intended Interested Party’s Application is premised. That Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 allows a party to seek leave to be brought in as an interested party. Counsel maintained therefore that the Intended Interested Party's Application in no way violates the cited provisions of law and that the Appellant has not attempted to demonstrated how these provisions affects the jurisdiction of this court.
7. Regarding locus standi, Counsel submitted that the Appellant argues that the Intended Interested Party has no locus by virtue of the fact that she was not a party during the trial in the lower court. Counsel cited Order 1 Rule 10 of the Civil Procedure Rules, 2010, on joinder of parties and urged that the said provision states that a party may be added to a suit at any stage. Counsel submits that “any stage” includes even the Appellate Stage. Counsel cited the Supreme Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLRwhere the Court stated as follows;
“Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause”
8. Counsel urged that the import of the Supreme Court's decision is that, it doesn't matter that one was a not a party ab initio, it only matters that a party has an identifiable stake in the proceedings, will be affected by the decision of the court either way and that her interests will not be properly articulated without them. Counsel submitted that Intended Interested Party is seeking leave to be admitted to these proceedings hence the question of locus standi cannot arise at this point. That if she had filed an appeal or responded to this appeal without being made a party, the Appellant's argument on locus would have made legal sense but at this moment it doesn't.
9. Counsel maintained that the Intended Interested Party is a spouse seeking to protect the matrimonial property that will definitely be affected by the decision of this court, that her interests cannot be well articulated unless she is brought in the suit. Counsel submitted that this is demonstrated by how the issue of spousal consent was not even pleaded at the trial court and only showed up during cross examination of DW1. Counsel further urged that they did demonstrate in their Application that Intended Interested Party is not bringing in any additional grounds, that the Intended Interested Party is the spouse to the 1st Respondent, who is the proprietor of all that land comprised in Title NO. PIONEER/NGERIA BLOCK 1 (EATEC)/9963 which is the subject matter of these proceedings, and which property is the matrimonial home and that Appellant in its Statement of Defence at the trial court did acknowledge at paragraph 4 of the said defence that the property used as collateral belongs to the 1st Respondent and that the same is a matrimonial home. Further that ground number 4 in the Memorandum of Appeal touches on the question of spousal consent that the Intended Interested Party seeks to help this court fully address hence it is not an introduction of a new matter.
The Appellant’s Submissions
10. On whether the Applicant has locus, Counsel submitted that the substitution and addition of parties to a suit is governed by Order 1 Rule 10(2) of the Civil Procedure Rules. Counsel contended that the Applicant has not stated with precision the statutory provisions and legal authority that justify her enjoinment thus offending the above said provision including Section 65 of the Civil Procedure Act. Counsel further submitted that in defining locus standi, the Court in Christopher Mutiembu Machimbo & 3 others v County Surveyor, Trans-Nzoia & 4 others [2022] eKLR, the Court stated;
"therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that locus standi is so important Court."
11. Counsel further relied on Order 42 Rule 22 of the Civil Procedure Rules, 2022 and submitted that a court can only join an interested party to proceedings as a respondent in the appeal if one was a party to the suit in the court from lacks locus standi to present the application since she was not a party in the trial court proceedings.
12. Counsel contended that the issue of spousal Consent never came up in the primary case at the lower Court and that the Applicant has raised a ground in which no evidence was adduced before the trial Court and further that not only did the parties not address the trial Court on the issue of spousal consent but also the trial Court did not pronounce itself on the said issue in its final determination. Counsel relied on the holding in the case of Kenya Hotels Limited v Oriental Commercial Bank Limited [2018] eKLR where the court in rejecting new evidence and grounds in appeal stated;
"Due to these fundamental concerns, the Courts have developed fairly elaborate principles that guide it in determining whether or not to allow a new point on appeal. In Openda v Ann,(supra) this Court identified some of the principles to include that all grounds of appeal must arise from issues that were sufficiently pleaded, canvassed, raised or succinctly made issues at the trial; that the point sought to be introduced must be consistent with the applicant's case as conducted in the trial court, not changing it into a totally different case; the matter must have be properly pleaded and the facts in support of the new point must have come out in the trial court; a new point which has not been pleaded or canvassed in the trial court should not be allowed to be taken on appeal, unless the evidence establishes beyond reasonable doubt that the facts before the trial court, if fully investigated, would support the point; where the question is one of law turning on the construction of a document, the new point may be allowed but only if the facts when fully investigated support the new plea."
13. Counsel submitted therefore that the application is belated as the interested party seeks to be enjoined one year after the Appeal was filed. In support of this submission, Counsel relied of the maxim of equity that "equity aids the vigilant and not the indolent and delay defeats equity" and also on the holding in the case of Ibrahim Mulgara Mwangi V Francis Ndegwa Mwangi [2014] eKLR where the court quoted the following passage from Snell's Equity by John MC Ghee Q.C. (31st Edition) at page 99:
"The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing."
14. On whether the Application is merited, Counsel submitted that Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party to mean a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the Court but is not a party to the proceedings or may not be directly involved in the litigation. Counsel added that Rule 7 states that such a person can apply to be joined as an interested party to the proceedings with the leave of Court and that the Court can also join an interested party to the proceedings on its own motion.
15. Counsel cited the case of Trusted Society of Human Rights Alliance v Mammate & 5 others [2015] eKLR (Supra); Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties): Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015(Consolidated)) [2016] KESC, where the court stated the elements applicable for the joinder as an interested party to include:
"The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court."
16. Counsel reiterated that the Applicant has not shown that she has a clear and identifiable stake in the matter particularly, how her rights or obligations will be directly impacted by the outcome of the appeal and that the Applicant has not sufficiently demonstrated any direct, substantial, or legal interest in the proceedings.
17. Counsel submits that the Applicant only seeks to be a party in proceedings with unexamined evidence without valid justification and could burden the Appeal Procedure Rules 2022 and that her true intentions are to present a fresh cause of action. Counsel relied on the holding in the case of Communications Commission of Kenya & 4others v Royal Media Services Limited & 7 others [2014] eKLR where the Supreme Court of Kenya held that;
"...The applicant now seeks to be enjoined in this matter, even though it was neither a party at the High Court nor at the Court of Appeal. The applicant has not demonstrated how the ends of justice would better be served by enjoining it in the appeal..."
"...We cannot exercise our discretion to enjoin a party that disguises itself as an Interested Party, while in actual fact merely seeking to institute fresh cause..."
Determination
18. Having carefully addressed my mind to the Preliminary Objections together with the submissions attendant thereto, it is my considered opinion that the issue for determination is;
whether Preliminary Objection dated 8th November 2024 as raised by Counsel for the Appellant/Applicant has merit.
19. As already submitted by Counsel for the interested party, a Preliminary Objection was defined in the case of Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 (supra) . This case is the locuss classicus on the definition of a Preliminary Objection. It defined it as follows:
“So far as I am aware, 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”.
20. Further Sir Charles Nebbold, JA went further to state thus;
“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 had 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 not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
21. For a preliminary objection to succeed therefore, it must raise a pure point of law. Anything that is not a such but turns out to be a point of fact or mixed fact and law would therefore not qualify to be a Preliminary Objection. What thein is a point of fact as opposed to a point of law? A "point of fact" refers to a specific, verifiable event or circumstance. It is a concrete detail or piece of evidence that is presented to a court to establish the truth of a matter. It is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. A point of fact therefore is rebuttable by way of evidence to the contrary. Points of facts form the foundation upon which legal arguments and decisions are built.
22. A "point of law" on the other hand is a legal principle that is to be interpreted or applied to the facts of a case and must be answered by applying relevant legal principles not facts. From my consideration of all the issues raised by the Appellant/Applicant in the Preliminary objection I find that the same are as equally verifiable and/or explainable as they are rebuttable by way of availing evidence to the contrary. In this regard then, they are mainly points of facts as opposed to points of law and in some instances are a healthy mix of both.
23. In light of the above, I am of the finding that the Objections raised by the Appellant do not fit into the definition of pure points of law but would qualify mainly as Grounds of Opposition which can be rebutted, denied, controverted, and/or contradicted by way of evidence to the contrary. This is particularly so because I note from the submissions by Counsel for the Appellant/Applicant on the said objection, he has delved at length on the merits and/or demerits of the facts deposed in the Interested Party’s Application for rejoinder. This only goes to underscore my finding that the objections raised are not only a mix of law but are largely comprised of facts. They therefore do not fit into the definition of a Preliminary Objection as envisaged in the Mukhisa Biscuit case.
24. In light of the above, it is my finding that the Preliminary Objection raised lacks merit and the same is dismissed with each party bearing their own costs.
Read Dated and Signed at ITEN on 2nd April 2025