Skip to content
JudgmentState Law VS AL HABIB TRADING COMPANY7 min read

State Law VS AL HABIB TRADING COMPANY

High Court at Voi High Court · · George. Dulu


(From the judgment in Civil Case No. E35 of 2020 delivered on 2nd March 2022 by Hon. C. K. Kithinji (PM) at Voi Law Courts)

  1. In this matter Alhabib Trading Company filed a plaint in the Magistrate’s court at Voi in CMCC E35 of 2020, and described itself as a limited liability company incorporated and registered pursuant to the provisions of the Companies Act No. 17 of 2015, with its registered office and principal place of business being Nairobi.  The defendants were listed as Dominic Okade, The Principal Secretary Ministry of Defence, and The Hon. Attorney General.
  2. To this plaint, the Attorney General for the 2nd and 3rd defendants the Principal Secretary Ministry of Defence, and the Attorney General filed a defence dated 30th December 2020, in which they challenged the claim of the plaintiff (now respondent) and averred that since the principal place of business of the 2nd and 3rd defendants was Nairobi, the proper forum to file suit was the Chief Magistrate’s Court at Milimani, Nairobi.
  3. Thereafter, on 3rd March 2021, the respondent again filed an amended plaint whose principal change was to replace the respondent company as plaintiff, with a person known as Hussein Hassan Amin.  The above amendment of plaint was allowed through leave granted by the Magistrate’s court, which is subject to another appeal.
  4. To this amended plaint, the 2nd and 3rd defendants (through the Attorney General), filed an amended defence dated 22nd March 2021.
  5. In addition, the Attorney General filed a Notice of Motion dated 15th April 2021 in which inter alia, they sought that this court disallows the amendment to the plaint and proposed substitution of the plaintiff.  As stated above, the decision on the amendment is the subject of another appeal.
  6. The 2nd and 3rd defendants (now appellants) through the Attorney General also filed a Notice of Preliminary Objection dated 15th April 2021 in the following terms:-
  7. The cause of action is time barred pursuant to Section 3(1) of the Public Authorities Limitations Act, Cap.39 Laws of Kenya.
  8. This honourable court lacks jurisdiction to entertain the suit.
  9. The decision to this Preliminary Objection is the subject of the present appeal.  The above Preliminary Objections were canvassed before the Magistrate’s court, and in a ruling delivered on 2nd March 2022, the learned Magistrate dismissed the objections and concluded as follows:-

“I appreciate the industry in the defendants submissions and I am guided by the decision cited.  The plaintiff pleads that the cause of action arose on or about 28th January 2020.  The suit ought to have been filed on or before 27th January 2021 to file the claim.  The claim was filed on 24th November 2020.  An amendment made on 3rd January 2021 was allowed on 13th  October 2021.  The defendant has filed an appeal challenging the ruling allowing the amendment.  That issue is for the High Court.  I must however mention that upon amendment a suit is presumed to have been field as amended hence the later dates do not arise.  The suit was brought within time.  The objection thus lacks merit and is dismissed.  Costs in the cause.”

  1. It is from the above ruling of the Magistrate’s court that the present appeal was filed, through the Attorney General based on the following grounds:-
  2. The learned Magistrate erred in fact and in law in finding that the Preliminary Objection dated 15.4.2021 lacked merit.
  3. The learned Magistrate erred in fact and in law in dismissing the Preliminary Objection dated 15.4.2021.
  4. The learned Magistrate erred in fact and in law in finding that the suit was brought within time.
  5. The learned Magistrate erred in fact and in law in presuming that the suit (was) filed as amended.
  6. The learned Magistrate erred in fact and in law in failing to find that the substitution was effective either when the amended plaint was filed in court or when the court allowed the amended plaint and substitution.
  7. The learned Magistrate erred in fact and in law in finding that the substitution of the plaintiff applies retrospectively and thus effective at the time of filing the suit.
  8. The learned Magistrate erred in fact and in law in presuming that the substitution has a retrospective effect in the absence of an application for extension of the limitation period.
  9. The learned Magistrate erred in fact and in law in failing to appreciate that the plaintiff did not make a formal application for extension of the limitation period.

  1. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the Attorney General for the appellant, as well as the submissions filed by Abdirizak & Company Advocates for the respondent.
  2. I note that the Preliminary Objections filed were two firstly that the cause of action was time barred and secondly, that the Magistrate’s court had no jurisdiction to entertain the suit.  That is what the Magistrate made a ruling on.
  3. On appeal, the major issues listed in grounds of appeal, and in the submissions by the Attorney General was whether the Magistrate erred in finding that the amended claim was deemed to have been filed when the original plaint was filed, and not when the amendment to the plaint was made.  Secondly, the Attorney General went on to argue at length on whether the original plaintiff was a legally recognized person, and if not contended that the original plaint was a nullity.
  4. On the other hand, counsel for the respondent Abdirazak & Company Advocates argued in submissions that the appellants had not yet filed a defence to the suit, and that he amendment to the plaint was legally proper and correct, and valid.
  5. In my view, the crux of this appeal relates to whether an amendment to a pleading changes the filing date of the proceedings generally.  Secondly, in this case, whether the original plaintiff was a non existent entity or party, and if so, whether as a consequence the original plaint was a nullity.
  6. With regard to the first issue as to whether amendment to pleadings, including substitution of parties changes the date of filing the proceedings, the case of Manilal & Sons =Versus= Umedhai AIR 1957 Cal 688 is on point.  The proceedings are the same as filed on the original date of filing.  That an Indian case.
  7. Here in Kenya under Order 1 Rule 10 of the Civil Procedure Rules 2010, it is provided as follows:-

“1 (10) where a suit has been instituted in the name of the wrong persons or plaintiff, or where it is doubtful whether it has been instituted in the  name of the right plaintiff, the court may at any stage of the suit if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the matter in dispute to do so, order any other person to be substituted or added as a plaintiff upon such terms as the court thinks fit.”

  1. Thus in my view, the court in which a suit or proceedings have been filed has powers to substitute parties, and the main consideration is the determination of the real matter in dispute.
  2. I am informed in this matter, and the ruling of the Magistrate delivered on 13th October 2021 herein is explicit, that the contested request for substitution was heard and determined by the Magistrate’s court.  Thus in my view, the said substitution cannot be subject matter of a Preliminary Objection to be determined later, but the aggrieved party could appeal against the decision of the Magistrate’s court in allowing the substitution.  Thus from 13th October 2021, the Preliminary Objection became moot and academic.
  3. Though the Attorney General has raised the argument of the provisions of Section 21 of the Limitation Act would time bar the amendment to the plaint, that in my view is a point to be taken in the appeal from the ruling of the Magistrate’s court already delivered herein, on substitution of parties through amendment of the plaint, rather than through a Preliminary Objection, because a Preliminary Objection can only be determined before or at the same time of a substantive decision of the court but not after the substantive decision has been made like in this case.  Once a substantive decision has been made the Preliminary Objection will cease to be either preliminary or a legal objection.
  4. I now go to the legality of the original plaintiff Alhabib Trading Company Ltd.  The appellants counsel has also raised the issue of the original plaintiff being a non existent legal entity in their Preliminary Objection.  I am afraid that such complaint does not fit within the parameters of a Preliminary Objection as explained in the case of Mukisa Biscuit Manufacturing Company Ltd =Versus= West End Distributors Ltd (1969) EA 696 as it would not be a pure point of law, but a mixture of facts and law.  In my view, proof of that contention will depend largely on evidence to prove whether the original plaintiff was a genuine or fake organization. 
  5. To conclude, in my view, once the Magistrate delivered the ruling allowing the amendment to the plaint on 13th October 2021, the appellant herein should have used prudence and abandoned the Preliminary Objection and pursued an appeal to the ruling, if they felt aggrieved by the ruling of the Magistrate. 
  6. I thus find no merits in the appeal.  I dismiss the appeal.  The appellant will bear the respondent’s costs of this appeal.  For the avoidance of doubt this appeal is related to another appeal No. E059 of 2021 in which the amended plaint was struck out.

Dated, signed and delivered this 23rd day of May 2024 in open court at Voi virtually.

In the presence of:-

Trizah – Court Assistant

Mr. Njoka for the appellant

Mr. Mohamed holding brief for respondent