( Being an appeal from the Ruling of the Honourable E.A. Obina, SPM delivered on 17 th September, 2024 in Kisumu CMCC No. E097 of 2020 )
1. This judgment determines the Appellant’s appeal filed vide a Memorandum of Appeal dated the 7 th October, 2024 against the impugned Ruling of the Hon. Magistrate E. A . Obina delivered on 17 th September, 2024.
Background
2. In the trial court the Appellant was the Plaintiff. The suit related to medical negligence and the minor Plaintiff had sued through the father and next friend. A Preliminary Objection was raised by the Defendant, who is the Respondent herein alleging that the Plaintiff had not complied with Order 32 Rule 1 and 2 of the Civil Procedure Rules, when filing the suit. The claim is that the Appellant had not filed a signed consent by the next friend as required by Order 32 Rule 1 (2).
3. In the impugned Ruling, the learned Magistrate upheld the Preliminary Objection and struck out the Plaintiff’s suit against the Defendant.
4. Aggrieved by the Ruling, the Appellant filed this appeal citing the following grounds:-
a. The learned trial Magistrate erred in law and in fact in upholding the Notice of Preliminary Objection dated 19 th April 2024 in light of the legal provisions, authorities and submissions placed before him by the Appellant.
b. The learned Magistrate erred in law and in fact by finding that the Appellant did not comply with Order 32 rule 1 of the Civil Procedure Rules 2010 and holding it as a fatal procedural defect that cannot be cured while in fact he ignored the affidavit of consent of next friend attached to the plaint dated 18.11.2020.
c. The learned Magistrate misdirected himself in law and in fact in failing to consider that the Appellant filed this case as a father and next friend to the Minor in the heading of the main suit and had a sworn affidavit with the heading of consent of a next friend filed in court with the plaint.
d. The learned trial Magistrate erred in law and in fact in failing to appreciate that it was not in the interest of justice and fairness to uphold the Preliminary Objection where curative measures could have been undertaken to remedy the situation as it was a matter of order of syntax.
e. The learned Magistrate erred in law and in fact by failing to appreciate the evidence adduced before him by the Appellant.
f. The learned Magistrate erred in law and in fact in not relying on the evidence produced by the Appellant.
g. The learned Magistrate misdirected himself on the assessment of evidence adduced before him by the Appellant in that in that he failed not notice so called consent of next friend was attached to the plaint and verifying affidavit and not listing it in the list of documents
could never have been fatal.
h. The learned Magistrate erred in both law and fact in discrediting the submissions tendered on behalf of the Appellant.
5. It was proposed to ask that the Appeal be allowed and the Ruling dated 17 th September, 2024, delivered in the subject suit be set aside and the Preliminary Objection dated 19 th April, 2024 be dismissed.
6. The Appeal was heard by way of written submissions.
Appellants Submissions
7. The Appellant submitted on the case of Butt vs. Khan (1977) 1 KLR where the Court of Appeal articulated the guiding legal threshold that must be met to justify interference with a decision of the trial court stating that "it must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect” . They also cited the decision in Peter M. Kariuki v Attorney General (2014) e KLR where the Court of Appeal observed as follows:-
" We are duty bound as the first Appellate court, to reconsider the evidence adduced before the first trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial Judge are consistent with the evidence ”.
The Appellant thus invited the court to reconsider the Preliminary Objection alongside the pleadings as a whole.
8. According to counsel, a Preliminary Objection cannot be raised if any fact has to be ascertained. They submitted that the 1 st 2 nd 4 th and 6 th Respondents' Preliminary Objection required the court to determine several issues, being whether an affidavit of consent existed, whether the same was filed and whether it formed part of the court record. Counsel submitted that these were contested factual matters and not pure points of law, and therefore could not be brought to court by way of a Preliminary Objection.
9. On compliance with Order 32 Rule 1 and 2, Counsel submitted that the suit was filed in the name of the minor through her father and next friend and there was an affidavit of consent of next friend dated 18 th November, 2020 which was filed together with the plaint. According to the Appellant the Respondents did not conclusively prove absence of the document from the trial court's record. Counsel submitted that even if the document was not listed in the list of documents, it was still on the record.
10. Counsel submitted that a father can be a guardian or a next friend and perfectly meets the requirements of Order 32. So that the distinction that the Respondents want to draw is untenable in the circumstances. Counsel urged the court to look at substantive justice as opposed to technicalities and find that the trial Magistrate had erred in upholding the Preliminary Objection.
Respondent’s Submissions
11. Opposing the appeal counsel for the Respondent submitted that the Appellant had not complied with Order 32 Rule 1 and 2 of the Civil Procedure Rules because there was no written authority to the Advocate by the next friend to institute the proceedings. Counsel submitted that the Appellant having not complied with Rule 1 as above, the P.O was filed as required in Rule 2 and the trial Magistrate was right in upholding the same.
12. Counsel submitted that there was no injustice suffered because the suit was struck out and the Appellant had the option of going back to the Lower Court to institute the suit again. The Respondent urged the court to uphold the findings of the trial Magistrate.
Analysis of Evidence and Determination
13. This being the first Appellate court, its duty is as summarized by the Court of Appeal in Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123 : which is:-
"… to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ This duty was also re-emphasized in Peter M. Kariuki v Attorney General (2014) e KLR where the Court of Appeal observed as follows; "We are duty bound as the first appellate court, to reconsider the evidence adduced before the first trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence ”.
14. The submissions before the trial court were simple. That the Appellant had not complied with Order 32 Rule 1 and Rule 2 by not filing the authority by the next friend as required by the Rules and therefore the suit was not properly before the court.
15. Based on this, a Preliminary Objection was filed and the impugned ruling herein was delivered. This court now has the honours to decide on whether the Preliminary Objection had been properly filed and whether the trial Magistrate had erred in upholding it.
16. Having considered the appeal, the submissions in support and the opposing submissions, I frame the following issues for determination:-
a. Whether the Preliminary Objection was properly raised in the matter;
b. Whether the Appellant had complied with Order 32 Rules 1 and 2 of the Civil Procedure Rules;
c. Whether the trial court erred in striking out the suit.
Whether the Preliminary Objection was properly raised in the matter
17. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [19691 EA 696 a Preliminary Objection was defined thus; "A preliminary objection consists of a pure point of law... which is argued on the assumption that all facts pleaded are correct. "
18. The assumption is that looking at the pleadings as filed, one should be able to ascertain Ord if 32 Rule 1 and 2 were not complied with and therefore a P.O would suffice. Order 32 Rule 1 and 2 provide for a written authority by the next friend to counsel and the authority is filed alongside the pleadings. So that the mere perusal of the pleadings would be sufficient to ascertain whether the provision of law was complied with or not.
19. And this is what exactly the trial Magistrate was supposed to check. Whether the authority had been filed on the court record. Whether the authority had been filed is a matter of compliance with the law (according to Order 32 Rule 1 (2)) and a matter of fact, because this would involve a physical confirmation from the court record. And to that extent, my view is that the confirmation as to whether the authority had been filed is a fact and therefore a Preliminary Objection would not be the appropriate manner through which to move the court.
20. I state this because, this would be a salad of both law and fact, so that the issues are not pure points of law as was envisaged in Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) EA 696 , where the court stated “ It cannot be raised if it has to be ascertained or if what is sought is the exercise of judicial discretion. Any of the points raised by the Respondents herein, that required the court to look at the evidence to ascertain their veracity would not qualify to be canvassed by way of a Preliminary Objection.
21. I therefore find that the P.O herein was not properly filed, and what the Respondents ought to have filed is an application as provided for under Rule 32 (2) with notice to the Appellant.
Whether the Appellant had complied with Order 32 Rules 1 and 2 of the Civil Procedure Rules
22. Be that as it may I will proceed and evaluate the Preliminary Objection that was filed in the trial court. Order 32 Rule 1 of the Civil Procedure Rules, provides as follows: -
Rule 1 (1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
Rule 1 (2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed."
23. Order 32 Rule 2 of the Civil Procedure Rules, proceeds to state as follows: -
Rule 2 (1) Where a suit is instituted by or on behalf of a minor without a next friend the Defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented.
Rule 2 (2) Notice of such application shall be given to such person, and the court, after hearing his objections (if any), may make such order in the matter as it thinks fit"
24. I have reevaluated the pleadings herein and more specifically
the plaint and the accompanying documents filed herein on 18 th November 2020. I have noted that the suit was filed in the name of the minor through her father and next friend. There is also an affidavit of consent of next friend dated 18 th November, 2020 which was filed together with the plaint.
25. My finding is that there was indeed the authority as evidenced in the affidavit of consent and therefore the Appellant had fully complied with the Provisions of Order 32 Rule 1. The true intent and purpose of Order 32 is to protect minors and ensure that they are properly represented and their best interest taken care of as was held by the court in A.M.K v J.M.K & Another (2018) e KLR , where the Court held that the essence of Order 32 is representation of minors, not technical compliance.
26. I am alive to my duty as a trial court and the requirement not to interfere with the discretion of the trial court. However, in the present case, my view is that the trial Magistrate in the instant case misapprehended the availed documents and failed to consider the affidavit of consent that was filed together with the plaint herein in arriving at his decision. And guided by Butt vs. Khan (1977) 1 KLR where the Court of Appeal articulated the guiding legal threshold that must be met to justify interference with a decision of the trial court stating that "it must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, I will proceed and find that the trial Magistrate erred in law in finding that the Appellant had not complied with Order 32 Rule 1 and 2.
Whether the trial court erred in striking out the suit
27. Having found that the trial Magistrate erred in finding that the Appellant had not complied with Order 32 Rule 1 and 2 and considering that the Plaintiff herein is a minor who should be protected by the law, my finding is that the trial Magistrate erred in the application of the law and striking of the Appellants suit.
28. I will allow the appeal herein and set aside the orders of the trial Magistrate granted vide the ruling dated 17 th September, 2024. The effect of this order is that the Preliminary Objection dated 19 th April, 2024 is dismissed and the parties will proceed with the main suit at the Lower Court before any other Magistrate other than Hon. E.A. Obina ( SPM ).
Orders accordingly.
JUDGMENT delivered, dated and signed virtually at Nairobi
This 26 th day of June, 2026
In the Presence of :
Leadsy – Court Assistant
Miss Ochieng holding brief for Nyanga for Appellant.
No appearance for Akiyo for Respondent.
No appearance for Attorney General.
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1. This judgment determines the Appellant’s appeal filed vide a Memorandum of Appeal dated the 7 th October, 2024 against the impugned Ruling of the Hon. Magistrate E. A . Obina delivered on 17 th September, 2024.
Background
2. In the trial court the Appellant was the Plaintiff. The suit related to medical negligence and the minor Plaintiff had sued through the father and next friend. A Preliminary Objection was raised by the Defendant, who is the Respondent herein alleging that the Plaintiff had not complied with Order 32 Rule 1 and 2 of the Civil Procedure Rules, when filing the suit. The claim is that the Appellant had not filed a signed consent by the next friend as required by Order 32 Rule 1 (2).
3. In the impugned Ruling, the learned Magistrate upheld the Preliminary Objection and struck out the Plaintiff’s suit against the Defendant.
4. Aggrieved by the Ruling, the Appellant filed this appeal citing the following grounds:-
a. The learned trial Magistrate erred in law and in fact in upholding the Notice of Preliminary Objection dated 19 th April 2024 in light of the legal provisions, authorities and submissions placed before him by the Appellant.
b. The learned Magistrate erred in law and in fact by finding that the Appellant did not comply with Order 32 rule 1 of the Civil Procedure Rules 2010 and holding it as a fatal procedural defect that cannot be cured while in fact he ignored the affidavit of consent of next friend attached to the plaint dated 18.11.2020.
c. The learned Magistrate misdirected himself in law and in fact in failing to consider that the Appellant filed this case as a father and next friend to the Minor in the heading of the main suit and had a sworn affidavit with the heading of consent of a next friend filed in court with the plaint.
d. The learned trial Magistrate erred in law and in fact in failing to appreciate that it was not in the interest of justice and fairness to uphold the Preliminary Objection where curative measures could have been undertaken to remedy the situation as it was a matter of order of syntax.
e. The learned Magistrate erred in law and in fact by failing to appreciate the evidence adduced before him by the Appellant.
f. The learned Magistrate erred in law and in fact in not relying on the evidence produced by the Appellant.
g. The learned Magistrate misdirected himself on the assessment of evidence adduced before him by the Appellant in that in that he failed not notice so called consent of next friend was attached to the plaint and verifying affidavit and not listing it in the list of documents
could never have been fatal.
h. The learned Magistrate erred in both law and fact in discrediting the submissions tendered on behalf of the Appellant.
5. It was proposed to ask that the Appeal be allowed and the Ruling dated 17 th September, 2024, delivered in the subject suit be set aside and the Preliminary Objection dated 19 th April, 2024 be dismissed.
6. The Appeal was heard by way of written submissions.
Appellants Submissions
7. The Appellant submitted on the case of Butt vs. Khan (1977) 1 KLR where the Court of Appeal articulated the guiding legal threshold that must be met to justify interference with a decision of the trial court stating that "it must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect” . They also cited the decision in Peter M. Kariuki v Attorney General (2014) e KLR where the Court of Appeal observed as follows:-
" We are duty bound as the first Appellate court, to reconsider the evidence adduced before the first trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial Judge are consistent with the evidence ”.
The Appellant thus invited the court to reconsider the Preliminary Objection alongside the pleadings as a whole.
8. According to counsel, a Preliminary Objection cannot be raised if any fact has to be ascertained. They submitted that the 1 st 2 nd 4 th and 6 th Respondents' Preliminary Objection required the court to determine several issues, being whether an affidavit of consent existed, whether the same was filed and whether it formed part of the court record. Counsel submitted that these were contested factual matters and not pure points of law, and therefore could not be brought to court by way of a Preliminary Objection.
9. On compliance with Order 32 Rule 1 and 2, Counsel submitted that the suit was filed in the name of the minor through her father and next friend and there was an affidavit of consent of next friend dated 18 th November, 2020 which was filed together with the plaint. According to the Appellant the Respondents did not conclusively prove absence of the document from the trial court's record. Counsel submitted that even if the document was not listed in the list of documents, it was still on the record.
10. Counsel submitted that a father can be a guardian or a next friend and perfectly meets the requirements of Order 32. So that the distinction that the Respondents want to draw is untenable in the circumstances. Counsel urged the court to look at substantive justice as opposed to technicalities and find that the trial Magistrate had erred in upholding the Preliminary Objection.
Respondent’s Submissions
11. Opposing the appeal counsel for the Respondent submitted that the Appellant had not complied with Order 32 Rule 1 and 2 of the Civil Procedure Rules because there was no written authority to the Advocate by the next friend to institute the proceedings. Counsel submitted that the Appellant having not complied with Rule 1 as above, the P.O was filed as required in Rule 2 and the trial Magistrate was right in upholding the same.
12. Counsel submitted that there was no injustice suffered because the suit was struck out and the Appellant had the option of going back to the Lower Court to institute the suit again. The Respondent urged the court to uphold the findings of the trial Magistrate.
Analysis of Evidence and Determination
13. This being the first Appellate court, its duty is as summarized by the Court of Appeal in Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123 : which is:-
"… to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ This duty was also re-emphasized in Peter M. Kariuki v Attorney General (2014) e KLR where the Court of Appeal observed as follows; "We are duty bound as the first appellate court, to reconsider the evidence adduced before the first trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence ”.
14. The submissions before the trial court were simple. That the Appellant had not complied with Order 32 Rule 1 and Rule 2 by not filing the authority by the next friend as required by the Rules and therefore the suit was not properly before the court.
15. Based on this, a Preliminary Objection was filed and the impugned ruling herein was delivered. This court now has the honours to decide on whether the Preliminary Objection had been properly filed and whether the trial Magistrate had erred in upholding it.
16. Having considered the appeal, the submissions in support and the opposing submissions, I frame the following issues for determination:-
a. Whether the Preliminary Objection was properly raised in the matter;
b. Whether the Appellant had complied with Order 32 Rules 1 and 2 of the Civil Procedure Rules;
c. Whether the trial court erred in striking out the suit.
Whether the Preliminary Objection was properly raised in the matter
17. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [19691 EA 696 a Preliminary Objection was defined thus; "A preliminary objection consists of a pure point of law... which is argued on the assumption that all facts pleaded are correct. "
18. The assumption is that looking at the pleadings as filed, one should be able to ascertain Ord if 32 Rule 1 and 2 were not complied with and therefore a P.O would suffice. Order 32 Rule 1 and 2 provide for a written authority by the next friend to counsel and the authority is filed alongside the pleadings. So that the mere perusal of the pleadings would be sufficient to ascertain whether the provision of law was complied with or not.
19. And this is what exactly the trial Magistrate was supposed to check. Whether the authority had been filed on the court record. Whether the authority had been filed is a matter of compliance with the law (according to Order 32 Rule 1 (2)) and a matter of fact, because this would involve a physical confirmation from the court record. And to that extent, my view is that the confirmation as to whether the authority had been filed is a fact and therefore a Preliminary Objection would not be the appropriate manner through which to move the court.
20. I state this because, this would be a salad of both law and fact, so that the issues are not pure points of law as was envisaged in Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) EA 696 , where the court stated “ It cannot be raised if it has to be ascertained or if what is sought is the exercise of judicial discretion. Any of the points raised by the Respondents herein, that required the court to look at the evidence to ascertain their veracity would not qualify to be canvassed by way of a Preliminary Objection.
21. I therefore find that the P.O herein was not properly filed, and what the Respondents ought to have filed is an application as provided for under Rule 32 (2) with notice to the Appellant.
Whether the Appellant had complied with Order 32 Rules 1 and 2 of the Civil Procedure Rules
22. Be that as it may I will proceed and evaluate the Preliminary Objection that was filed in the trial court. Order 32 Rule 1 of the Civil Procedure Rules, provides as follows: -
Rule 1 (1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
Rule 1 (2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed."
23. Order 32 Rule 2 of the Civil Procedure Rules, proceeds to state as follows: -
Rule 2 (1) Where a suit is instituted by or on behalf of a minor without a next friend the Defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented.
Rule 2 (2) Notice of such application shall be given to such person, and the court, after hearing his objections (if any), may make such order in the matter as it thinks fit"
24. I have reevaluated the pleadings herein and more specifically
the plaint and the accompanying documents filed herein on 18 th November 2020. I have noted that the suit was filed in the name of the minor through her father and next friend. There is also an affidavit of consent of next friend dated 18 th November, 2020 which was filed together with the plaint.
25. My finding is that there was indeed the authority as evidenced in the affidavit of consent and therefore the Appellant had fully complied with the Provisions of Order 32 Rule 1. The true intent and purpose of Order 32 is to protect minors and ensure that they are properly represented and their best interest taken care of as was held by the court in A.M.K v J.M.K & Another (2018) e KLR , where the Court held that the essence of Order 32 is representation of minors, not technical compliance.
26. I am alive to my duty as a trial court and the requirement not to interfere with the discretion of the trial court. However, in the present case, my view is that the trial Magistrate in the instant case misapprehended the availed documents and failed to consider the affidavit of consent that was filed together with the plaint herein in arriving at his decision. And guided by Butt vs. Khan (1977) 1 KLR where the Court of Appeal articulated the guiding legal threshold that must be met to justify interference with a decision of the trial court stating that "it must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, I will proceed and find that the trial Magistrate erred in law in finding that the Appellant had not complied with Order 32 Rule 1 and 2.
Whether the trial court erred in striking out the suit
27. Having found that the trial Magistrate erred in finding that the Appellant had not complied with Order 32 Rule 1 and 2 and considering that the Plaintiff herein is a minor who should be protected by the law, my finding is that the trial Magistrate erred in the application of the law and striking of the Appellants suit.
28. I will allow the appeal herein and set aside the orders of the trial Magistrate granted vide the ruling dated 17 th September, 2024. The effect of this order is that the Preliminary Objection dated 19 th April, 2024 is dismissed and the parties will proceed with the main suit at the Lower Court before any other Magistrate other than Hon. E.A. Obina ( SPM ).
Orders accordingly.
JUDGMENT delivered, dated and signed virtually at Nairobi
This 26 th day of June, 2026
In the Presence of :
Leadsy – Court Assistant
Miss Ochieng holding brief for Nyanga for Appellant.
No appearance for Akiyo for Respondent.
No appearance for Attorney General.
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