The Application before the Court is a Notice of Preliminary Objection dated 8th September 2023 premised on the following grounds: -
- The Applicant herein lacks the locus standi to present the Application as there is no criminal matter pending in court as pertaining the subject motor vehicle.
- Additionally, the Applicant is not a party to the suit at the trial court and in no way aggrieved by the Orders therein.
- That the Application is a non-starter and its aim is to abuse the court process.
- The background of this Application is that the Applicant instituted Revision proceedings before this Court vide Application dated 7th September 2023 seeking inter alia, the review of the decision in Keroka PMCCRCMisc E061 of2023 wherein an order releasing Motor Vehicle Registration No. KCY 595K Toyota Voxy to the Respondent was issued by the court. It was the Applicant's contention that the said order was likely to prejudice the interested parties in this suit who had a claim on the said motor vehicle and would render their pending investigations nugatory.
- The parties were directed to dispose of the Application by way of written submissions which I have read extensively and considered alongside the authorities cited. The Respondent informed the Court that they filed their submissions but the same were not availed in the Court file for my consideration.
- The main issue for determination is whether the Preliminary Objection should stand.
Analysis and Determination
- A preliminary objection was defined in the case of Mukisa Biscuits Manufacturing Ltd. v West End Distributors Ltd. Civil Appeal No. 9 of 1969 (1969) EA 696 where it was held that: -
“A preliminary objection consists of a point of law which has been pleaded, or which arises from a dear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. A preliminary objection is in the nature of what used to be called demurrer. It raises a pure point of law, which is argued on the assumption that al/ the facts pleaded are correct. It cannot be raised if any fact has to be ascertained or of what is sought is the exercise of judicial discretion.”
- It follows then that a Preliminary Objection must be based only and purely on points of law. The court cannot delve into an exercise of investigating or determining facts in dispute. In this case, it was not in contention that the suit motor vehicle registration No. KCY 595K had been released to the Respondent herein while there were impending investigations on its legal and rightful ownership. It was also not in dispute that both the Respondent and the Interested parties claimed a stake in it.
- The legal issue raised in the objection is that of locus standi the Court of Appeal in Alfred Njau and Others v City Council of Nairobi [1983] KLR 625, explained the term locus standi and held thus: -
“The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings.”
(See also BV Narayana Reddy vs. State of Karnataka Air (1985) Kan 99, 106 (The Constitution of India, ARD 226).
- ><>></><><>></><><>(></><><>(></><><>>>></><><>></><><>></><><><><><><><><><><><>></><><>></><><>></><><>></><><>></><><>></><><>></><><> ></></><><>< >< >></><><>></><><>></></></></></></></></></></><><>><>><>><>>>, ></><><>“ >></><><>>> ></><><><>“></></><><>>> >></><>><>></><><>>> ></><><></>