1. The 1st Respondent filed a Notice of Preliminary Objection dated 2nd December 2024, challenging the court’s jurisdiction to hear and/or determine the instant suit and applications on the following grounds:-
a) Spent;
b) Spent;
c) That the Petitioners lack the requisite locus standi to obtain orders in regard to the properties known as LR No. MN/V1/2428, LR No.MN/V1/4689, LR No.209/2389/95, LR No.209/5082 and LR No.25764. The said properties have already been sold to third parties via public auctions that were held on 14th August 2024 and 4th September 2024. As such, the Petitioners’ equity of redemption was extinguished at the fall of the hammer in line with section 104(4) of the Land Act and buttressed by the judgment of the Court of Appeal in Civil Appeal No 133 of 2006; Nancy Kahoya Amadiva vs Expert Credit Limited; and
d) That in view of the foregoing, the instant application and the entirety of this Petition ought to be dismissed with costs.
2. The Preliminary Objection was heard and a ruling delivered on 6th February 2025. In the said ruling, the Court found that the matter was subjudice. In paragraph 47 of the ruling, it stated as follows:-
“47. Having found that this matter is sub judice, I will not delve into the other issues as they are moot.”
3. Being aggrieved by the said decision, the Petitioners/Respondents filed an application for review dated 10th February 2025. Upon hearing the parties' counsels and considering their submissions, this Court ruled as follows on the 26th day of March 2025:-
“22. I find and hold that the application has merit. The decision of 6th February 2025 is reviewed. Since the court did not make a finding on the merits of the applications before it, save on the issues of sub judice raised in the preliminary objection, the court will have to deliver the decision on the merits of the two applications dated 17th and 13th November 2024, but having first determined the Notice of Preliminary Objection dated 2nd December 2024, in particular, grounds (c) and (d) thereof on their merits, as these were not considered in its ruling of 6th February 2025. The ruling on the preliminary objection will be delivered on 24th April 2025.”
4. It is pursuant to the above ruling that I am delivering a ruling in respect of the grounds in the Notice of Preliminary Objection dated 2nd December 2024 that I did not consider in my ruling dated 6th February 2025. In this ruling, I will not consider the issues I have previously determined, nor mention them at length. Given that this is the fourth ruling in this matter, I shall not rehash the facts at length.
5. The 1st Respondent, through its advocates, Igeria & Ngugi Advocates, filed written submissions dated 9th December 2024, in support of the Preliminary Objection.
6. The said counsels submitted that the Petitioners lacked locus standi as the properties were sold via public auction that took place on 14th August and 4th September 2024. Therefore, the properties are under the legal ownership of bona fide third-party purchasers. He urged the court to allow the preliminary objection.
7. The Petitioners, through their advocates Messrs Gachiri Kariuki & Company Advocates, filed written submissions in opposition to the Notice of Preliminary Objection dated 20th December 2024.
8. Regarding the submissions that the Petitioners lacked locus standi, counsel submitted that the claim to that effect was unfounded. It was urged that, given the nature of the Petition, it being a Constitutional Petition, the Petitioners have locus in respect of the constitutional issues raised.
9. In conclusion, counsel submitted that the preliminary objection lacks merit and therefore ought to fail.
10. I have considered the Preliminary Objection, the responses thereto, and the rival submissions by both counsel for the parties, and I must now determine whether it is merited.
11. To do so, I would first have to look at the scope of what a preliminary objection is and determine when it was properly raised in this.
12. The Court of Appeal in Mukisa Biscuits Manufacturing Company Ltd v West End Distributors [1969] EA 696 observed 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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
13. In the same case, Sir Charles Newbold, P., stated that:
“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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
14. Locus standi, on the other hand, was discussed in the case of Alfred Njau, Aluchio Liboi, Joseph Muya Mukabi, Peter Inyangala, Akhonya Analo and Jacob Gichigo v City Council of Nairobi [1983] KECA 56 (KLR) stated:-
“The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”
15. The 1st respondent argued that the properties were sold via public auction that took place on 14th August and 4th September 2024 and that therefore, the properties are under the legal ownership of bona fide third-party purchasers for value.
16. The petitioners in their petition have challenged the sale and transfer of the suit property. The status of the said properties also appears to be in contention. Since the factual situation requires an enquiry into the facts, it is my opinion that the preliminary objection in this respect cannot properly be raised. The words of Sir Charles Newbold in the Mukisa Biscuit decision are succinct and relevant in this case. The learned Judge of Appeal expressed himself as follows:-
“… 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.”
“
17. It is, therefore, my view that the issues raised in the preliminary objection may only be determined through a trial for the court to ascertain the facts pleaded by all parties to the Petition.
18. Further, the matter before me is a constitutional petition. Given the nature of the matter, the court should, as far as possible, allow a party to be heard regarding the alleged breach of their constitutional rights on the merits.
19. Consequently, it is my finding that the argument that the petitioners lack locus standi cannot, in this case, be raised as a preliminary objection.
20. On the issue of whether this matter is subjudice, this court has previously determined the same. Although it was submitted that there were other matters in court between the parties, I do not agree with the submissions that this matter is sub judice, given its nature.
21. The upshot of the foregoing is that the preliminary objection herein lacks merit and is hereby dismissed. I order that the parties bear their own costs.
22. Orders accordingly.
Dated and signed in Mombasa this 9th day of May 2025. Delivered virtually through Microsoft TEAMS.
a) Spent;
b) Spent;
c) That the Petitioners lack the requisite locus standi to obtain orders in regard to the properties known as LR No. MN/V1/2428, LR No.MN/V1/4689, LR No.209/2389/95, LR No.209/5082 and LR No.25764. The said properties have already been sold to third parties via public auctions that were held on 14th August 2024 and 4th September 2024. As such, the Petitioners’ equity of redemption was extinguished at the fall of the hammer in line with section 104(4) of the Land Act and buttressed by the judgment of the Court of Appeal in Civil Appeal No 133 of 2006; Nancy Kahoya Amadiva vs Expert Credit Limited; and
d) That in view of the foregoing, the instant application and the entirety of this Petition ought to be dismissed with costs.
2. The Preliminary Objection was heard and a ruling delivered on 6th February 2025. In the said ruling, the Court found that the matter was subjudice. In paragraph 47 of the ruling, it stated as follows:-
“47. Having found that this matter is sub judice, I will not delve into the other issues as they are moot.”
3. Being aggrieved by the said decision, the Petitioners/Respondents filed an application for review dated 10th February 2025. Upon hearing the parties' counsels and considering their submissions, this Court ruled as follows on the 26th day of March 2025:-
“22. I find and hold that the application has merit. The decision of 6th February 2025 is reviewed. Since the court did not make a finding on the merits of the applications before it, save on the issues of sub judice raised in the preliminary objection, the court will have to deliver the decision on the merits of the two applications dated 17th and 13th November 2024, but having first determined the Notice of Preliminary Objection dated 2nd December 2024, in particular, grounds (c) and (d) thereof on their merits, as these were not considered in its ruling of 6th February 2025. The ruling on the preliminary objection will be delivered on 24th April 2025.”
4. It is pursuant to the above ruling that I am delivering a ruling in respect of the grounds in the Notice of Preliminary Objection dated 2nd December 2024 that I did not consider in my ruling dated 6th February 2025. In this ruling, I will not consider the issues I have previously determined, nor mention them at length. Given that this is the fourth ruling in this matter, I shall not rehash the facts at length.
5. The 1st Respondent, through its advocates, Igeria & Ngugi Advocates, filed written submissions dated 9th December 2024, in support of the Preliminary Objection.
6. The said counsels submitted that the Petitioners lacked locus standi as the properties were sold via public auction that took place on 14th August and 4th September 2024. Therefore, the properties are under the legal ownership of bona fide third-party purchasers. He urged the court to allow the preliminary objection.
7. The Petitioners, through their advocates Messrs Gachiri Kariuki & Company Advocates, filed written submissions in opposition to the Notice of Preliminary Objection dated 20th December 2024.
8. Regarding the submissions that the Petitioners lacked locus standi, counsel submitted that the claim to that effect was unfounded. It was urged that, given the nature of the Petition, it being a Constitutional Petition, the Petitioners have locus in respect of the constitutional issues raised.
9. In conclusion, counsel submitted that the preliminary objection lacks merit and therefore ought to fail.
10. I have considered the Preliminary Objection, the responses thereto, and the rival submissions by both counsel for the parties, and I must now determine whether it is merited.
11. To do so, I would first have to look at the scope of what a preliminary objection is and determine when it was properly raised in this.
12. The Court of Appeal in Mukisa Biscuits Manufacturing Company Ltd v West End Distributors [1969] EA 696 observed 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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
13. In the same case, Sir Charles Newbold, P., stated that:
“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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
14. Locus standi, on the other hand, was discussed in the case of Alfred Njau, Aluchio Liboi, Joseph Muya Mukabi, Peter Inyangala, Akhonya Analo and Jacob Gichigo v City Council of Nairobi [1983] KECA 56 (KLR) stated:-
“The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”
15. The 1st respondent argued that the properties were sold via public auction that took place on 14th August and 4th September 2024 and that therefore, the properties are under the legal ownership of bona fide third-party purchasers for value.
16. The petitioners in their petition have challenged the sale and transfer of the suit property. The status of the said properties also appears to be in contention. Since the factual situation requires an enquiry into the facts, it is my opinion that the preliminary objection in this respect cannot properly be raised. The words of Sir Charles Newbold in the Mukisa Biscuit decision are succinct and relevant in this case. The learned Judge of Appeal expressed himself as follows:-
“… 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.”
“
17. It is, therefore, my view that the issues raised in the preliminary objection may only be determined through a trial for the court to ascertain the facts pleaded by all parties to the Petition.
18. Further, the matter before me is a constitutional petition. Given the nature of the matter, the court should, as far as possible, allow a party to be heard regarding the alleged breach of their constitutional rights on the merits.
19. Consequently, it is my finding that the argument that the petitioners lack locus standi cannot, in this case, be raised as a preliminary objection.
20. On the issue of whether this matter is subjudice, this court has previously determined the same. Although it was submitted that there were other matters in court between the parties, I do not agree with the submissions that this matter is sub judice, given its nature.
21. The upshot of the foregoing is that the preliminary objection herein lacks merit and is hereby dismissed. I order that the parties bear their own costs.
22. Orders accordingly.
Dated and signed in Mombasa this 9th day of May 2025. Delivered virtually through Microsoft TEAMS.