BRIEF FACTS
This ruling is in respect of the 4th Respondent’s preliminary objection dated 15th November, 2024 on the following grounds:
1. That the appeal herein was filed out of time and without leave of the court.
2. That the 4th Respondent herein was wrongly enjoined in this appeal by the Appellants as a party without leave yet it was not a substantive party in the suit at the subordinate court/tribunal.
Response
The Appellants did not file any response.
Submissions
Counsel for the 4th Respondent filed his submissions dated 19th November, 2024 where he identified one issue for determination, whether the preliminary objection is sustainable to the law. He relied on the case of Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd. 9691 EA 696 and the Supreme Court case of Hassan Ali Joho & Another V Suleiman Said Shahbal & 2 Others Petition 10 of 2013. It was his submission that the Appellants contravened Section 15 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301 that limits the time one can lodge an appeal from the tribunal to this court. He further relied on Section 79G of the Civil Procedure Rules that provides 30 days as the timeline for filing of an appeal from the subordinate court to the High Court.
He went on to submit that the tribunal delivered its judgment on 22nd March, 2024 while the appeal was file don 17th May, 2024. He argues that the appeal is 25 days late since the 30 days expired on 22nd April, 2024. He went on to submit that the Appellant never obtained an order for extension of time and thus the appeal to be struck out with costs.
Counsel also submits that the 4th Respondent was not a party to the suit before Nakuru BPRT No. E175 of 2023. He added that the Appellants never sought leave to have the 4th Respondent enjoined as a party. He urges the court to find that the 4th Respondent was wrongfully enjoined.
Counsel for the 1st Appellant/Applicant filed his submissions dated 25th November, 2024 where he identified four issues for determination. The first issue was whether the preliminary objection is preliminary in nature. He submits that the preliminary objection has been filed late in time. He relied on the case of Jedrom Building and Civil Engineering Limited V County Government of Uasin Gishu [2017] eKLR and Order 51 Rule 14(1) of the Civil Procedure Rules. He argues that the Respondents did not wish to oppose the application since they had all the time to file the same. He submits that the preliminary objection is misconceived and should be dismissed with costs.
The second issue is why the preliminary objection after six months. It was counsel’s submission that the preliminary objection has been filed after the court has already issued several directions and rulings. He relied on Order 42 rule 13 of the Civil Procedure Rules and submits that the Respondents failed to participate in the proceedings only to raise a preliminary objection late in time does not meeting the court’s overriding objective. Counsel cited Chapter 10 and Article 165(6) of the Constitution and the cases of Hadkinson V Hadkinson [1952] 2 ALL ER 567 and Burchell V Burchell 364/2005. He argues that there ought to be compliance with court orders and the rule of law.
The third issue is whether the appeal was filed out of time and without leave of the court. It was counsel’s submission that the Appellants had sought prayers for them to be allowed to file the memorandum of appeal out of time. He relied on the case of Nick Salat V Independent Electrol & Boundaries Commission & 7 Others [2014] eKLR where the court allowed extension of time for a party to file appeal out of time. He submits that the preliminary objection is based on technicalities notwithstanding the existence of a prima facie case. He urges the court to uphold the overriding objective for substantive justice as opposed to technicalities. Counsel relied on the Court of Appeal case of Stecol Corporation Limited V Susan Awuor Mudemb [2021] eKLR.
The final issue is whether the 4th Respondent was wrongly enjoined in the appeal. While submitting in the negative, he argues that the 1st , 2nd and 3rd Respondent had engaged the services of the 4th Respondent who acted in a manner incompatible with its status as a court officer provided under the Auctioneers Act. He relied on a number of cases including, D.T Dobie & Company (Kenya) Limited V Joseph Mbaria Muchina & Another [1980] eKLR and Kingori V Chege (2002) 2 KLR 243.
Analysis and Determination
This court has considered the preliminary objection and submissions and is of the view that the main issue for determination is whether the preliminary objection is merited.
In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:
“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.”
“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 on 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.”
In the case of George Oraro V Barak Eston Mbaja (Civil Suit 85 of 1992) [2005] KEHC 731 (KLR) (Civ) (6 July 2005) (Ruling) the court held as follows:
“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”.
Further in the case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR) the court held as follows:
“It is quite clear that a preliminary objection should 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 that point of law.
On that basis, two questions emerge for this Court’s consideration: what pure point of law has the 1st respondent raised in her preliminary objection? Are the facts in issue, settled?
It is to be recalled that only one prayer remains, for consideration by this Court: for extension of time to file a notice of appeal out of time. The preliminary objection targets this single prayer. The first ground in the preliminary objection is that the Orders sought have been overtaken by events. Prima facie, this is a factual issue, to be established by evidence from both parties. The Court is unable to dispose of the question, without first evaluating evidence from the parties. It is relevant, at the same time, that this ground raises no pure point of law, on its own. One is left asking: what law relates to the issue of an application seeking an Order of extension of time to file a notice of appeal, and to the question of such an Order being overtaken by events? Hardly any normative prescription exists, in that regard.”
It is therefore imperative for this court to establish whether the preliminary objection as raised by the 4th Respondent meets the threshold as enumerated in the decision in Mukisa Biscuits (supra). Regarding the first ground on the appeal having been file out of time and without the court’s leave, the 1st Applicant argues that it made an application seeking extension of time to file the appeal. The 4th Respondent on the other hand argues that the appeal was filed out of time. The second ground also requires this court to look into the court record in order to determine the same. I have perused the court record and do find that there is no leave granted by the court to the appellants to file the appeal out of time. The upshot of the foregoing is that the preliminary objection dated 5th July, 2024 is merited and the appeal is struck out with costs.
This ruling is in respect of the 4th Respondent’s preliminary objection dated 15th November, 2024 on the following grounds:
1. That the appeal herein was filed out of time and without leave of the court.
2. That the 4th Respondent herein was wrongly enjoined in this appeal by the Appellants as a party without leave yet it was not a substantive party in the suit at the subordinate court/tribunal.
Response
The Appellants did not file any response.
Submissions
Counsel for the 4th Respondent filed his submissions dated 19th November, 2024 where he identified one issue for determination, whether the preliminary objection is sustainable to the law. He relied on the case of Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd. 9691 EA 696 and the Supreme Court case of Hassan Ali Joho & Another V Suleiman Said Shahbal & 2 Others Petition 10 of 2013. It was his submission that the Appellants contravened Section 15 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301 that limits the time one can lodge an appeal from the tribunal to this court. He further relied on Section 79G of the Civil Procedure Rules that provides 30 days as the timeline for filing of an appeal from the subordinate court to the High Court.
He went on to submit that the tribunal delivered its judgment on 22nd March, 2024 while the appeal was file don 17th May, 2024. He argues that the appeal is 25 days late since the 30 days expired on 22nd April, 2024. He went on to submit that the Appellant never obtained an order for extension of time and thus the appeal to be struck out with costs.
Counsel also submits that the 4th Respondent was not a party to the suit before Nakuru BPRT No. E175 of 2023. He added that the Appellants never sought leave to have the 4th Respondent enjoined as a party. He urges the court to find that the 4th Respondent was wrongfully enjoined.
Counsel for the 1st Appellant/Applicant filed his submissions dated 25th November, 2024 where he identified four issues for determination. The first issue was whether the preliminary objection is preliminary in nature. He submits that the preliminary objection has been filed late in time. He relied on the case of Jedrom Building and Civil Engineering Limited V County Government of Uasin Gishu [2017] eKLR and Order 51 Rule 14(1) of the Civil Procedure Rules. He argues that the Respondents did not wish to oppose the application since they had all the time to file the same. He submits that the preliminary objection is misconceived and should be dismissed with costs.
The second issue is why the preliminary objection after six months. It was counsel’s submission that the preliminary objection has been filed after the court has already issued several directions and rulings. He relied on Order 42 rule 13 of the Civil Procedure Rules and submits that the Respondents failed to participate in the proceedings only to raise a preliminary objection late in time does not meeting the court’s overriding objective. Counsel cited Chapter 10 and Article 165(6) of the Constitution and the cases of Hadkinson V Hadkinson [1952] 2 ALL ER 567 and Burchell V Burchell 364/2005. He argues that there ought to be compliance with court orders and the rule of law.
The third issue is whether the appeal was filed out of time and without leave of the court. It was counsel’s submission that the Appellants had sought prayers for them to be allowed to file the memorandum of appeal out of time. He relied on the case of Nick Salat V Independent Electrol & Boundaries Commission & 7 Others [2014] eKLR where the court allowed extension of time for a party to file appeal out of time. He submits that the preliminary objection is based on technicalities notwithstanding the existence of a prima facie case. He urges the court to uphold the overriding objective for substantive justice as opposed to technicalities. Counsel relied on the Court of Appeal case of Stecol Corporation Limited V Susan Awuor Mudemb [2021] eKLR.
The final issue is whether the 4th Respondent was wrongly enjoined in the appeal. While submitting in the negative, he argues that the 1st , 2nd and 3rd Respondent had engaged the services of the 4th Respondent who acted in a manner incompatible with its status as a court officer provided under the Auctioneers Act. He relied on a number of cases including, D.T Dobie & Company (Kenya) Limited V Joseph Mbaria Muchina & Another [1980] eKLR and Kingori V Chege (2002) 2 KLR 243.
Analysis and Determination
This court has considered the preliminary objection and submissions and is of the view that the main issue for determination is whether the preliminary objection is merited.
In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:
“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.”
“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 on 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.”
In the case of George Oraro V Barak Eston Mbaja (Civil Suit 85 of 1992) [2005] KEHC 731 (KLR) (Civ) (6 July 2005) (Ruling) the court held as follows:
“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”.
Further in the case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR) the court held as follows:
“It is quite clear that a preliminary objection should 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 that point of law.
On that basis, two questions emerge for this Court’s consideration: what pure point of law has the 1st respondent raised in her preliminary objection? Are the facts in issue, settled?
It is to be recalled that only one prayer remains, for consideration by this Court: for extension of time to file a notice of appeal out of time. The preliminary objection targets this single prayer. The first ground in the preliminary objection is that the Orders sought have been overtaken by events. Prima facie, this is a factual issue, to be established by evidence from both parties. The Court is unable to dispose of the question, without first evaluating evidence from the parties. It is relevant, at the same time, that this ground raises no pure point of law, on its own. One is left asking: what law relates to the issue of an application seeking an Order of extension of time to file a notice of appeal, and to the question of such an Order being overtaken by events? Hardly any normative prescription exists, in that regard.”
It is therefore imperative for this court to establish whether the preliminary objection as raised by the 4th Respondent meets the threshold as enumerated in the decision in Mukisa Biscuits (supra). Regarding the first ground on the appeal having been file out of time and without the court’s leave, the 1st Applicant argues that it made an application seeking extension of time to file the appeal. The 4th Respondent on the other hand argues that the appeal was filed out of time. The second ground also requires this court to look into the court record in order to determine the same. I have perused the court record and do find that there is no leave granted by the court to the appellants to file the appeal out of time. The upshot of the foregoing is that the preliminary objection dated 5th July, 2024 is merited and the appeal is struck out with costs.