Cape to Cairo Logistics Limited v Government of Makueni County [2017] KEELC 295 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND

AT MAKUENI

ELC NO. 73  OF 2017

FORMERLY MACHAKOS ELC 9A OF 2015

CAPE TO CAIRO LOGISTICS LIMITED.....PLAINTIFF/APPLICANT

-VERSUS-

THE GOVERNMENT OF

MAKUENI COUNTY..............................DEFENDANT/RESPONDENT

RULING

1)  This is a ruling on the defendant’s  notice  of preliminary objection , whose grounds are :-

1. The application and the plaint are frivolous, defective, bad in law and an abuse of the court process.

2. The plaint and the plaintiff application herein offend the provisions of section 16 of the Government Proceedings Act, Cap 40 of the laws of Kenya.

3. The application and/or the Plaint herein are fatally defective and ought to be struck out.

2) The preliminary  objection was slated  for hearing on 18/6/2015when the court file was placed before the Deputy Registrar who directed  that the file be forwarded  to the Environment and Land Court, Nairobifor directions. On the 25th June, 2015 parties were required to appear in court for directions on the 15th July,2015. They did not appear and the matter was stood over generally until the 14th March, 2017 when this file was transferred to this court.

3)  On the 27th July, 2017, Mr. Mutune holding brief for Mr. Nyamu for the Defendant informed the court that parties had taken directions to canvass the application as well as the preliminary objection by way of written submissions. However the record herein clearly shows that no such directions were ever issued by the court.  The orders of 5th May, 2015 are clear  on the  directions  that were issued  on the material day.  Be that as it may, the defendant/respondent  has since then filed its submissions even though there is no evidence of it having served the applicant with the mention notice for  30th October, 2017. I will however proceed to make a determination on the preliminary objection since the respondents’ submissions are limited only to the objection.

4) According to the respondents counsel the issues for determination on the preliminary objection are:-

1. Whether  the defendant’s notice  of Preliminary Objection qualifies as a Preliminary Objection

2. Whether  this Honourable Court can issue the orders sought in the Plaintiff’s application and Plaint

5) Regarding the first issue the counsel cited the case of Mukisa Biscuits Manufacturing  co. Ltd  Vs  West End Distributors [1969] EA  696 and submitted that  the preliminary  objection  satisfies the criteria for a preliminary objection.

6) I have looked at the pleadings herein and I do note that the facts pleaded by the plaintiff in his plaint are denied by the respondent.  Those facts will have to be ascertained upon trial.

7) On whether  or not  this court can issue the orders sought in the application and the  plaint, the respondent’s counsel cited Article 1(4)  Article 6(2) and  Article 189(1) of the  constitution2010  and submitted that   there are two levels  of government  which are distinct and  interdependent and as such the respondent is a government for all intents and purposes. The counsel referred the court to the case of Kilimanjaro Safari  Club  Limited Vs Governor  Kajiado County in place  County Council  of Kajiado [2014] eKLR which held that the draftsman in coming up with the Government  proceedings  Act had in mind the interest  of government as a whole . The counsel went on to refer  the court to the case of Samuel Kerosi Ondieki &  Company  Advocates Vs  Narok  County Government  [2015] EKLRwhich cited with approval the  Kilimanjaro case (supra) and submitted that the prayers sought in the notice of motion are not specific and  nor  has the  plaintiff sought for a permanent injunction or  only injunctive order in the main suit and, therefore, cannot  seek interim injunctive orders at the  interlocutory stage.   The counsel therefore urged the court to dismiss the notice of motion application and the entire suit.

8) I wish to fully associate myself with the holdings in the two a authorities that the respondents counsel referred to me. I have looked at the plaint dated 15th January, 2015 and filed in court on even  date.   It is clear that the plaintiff is seeking for a declaratory relief envisaged on proviso (i) of section 16(1) of the Government proceedings Act, chapter 46 of the Laws of Kenya.  Arising from the above what was the plaintiff expected to do with  respect to his allegation   that  the defendant was unlawfully  harassing him and arbitrary impounding    his  machines and vehicles  pending the hearing of the main suit? Would it have been fair for it to wait for the determination of the main suit and thereby suffer economic harm without seeking a restraining  order from the court? In my view  the plaintiff  was right  to approach the court for  the injunction to restrain breach of injury under order 40  role 2(1)of the Civil  Procedure  Rule for what  he perceived   to be infringement of his right to carry out his economic activity pending   the hearing of this suit.  It cannot therefore be said that the both the notice of motion application and the suit are defective and as such I hold that the preliminary objection must fail.  Since the plaintiff has not filed any submissions regarding the preliminary objection.   I hold that each partly herein shall bear its own costs. In the circumstances the preliminary  objection  dated 4th May, 2015  and filed in  court on  even  date  is dismissed.

Signed, Dated andDeliveredthis 21stday ofNovember, 2017

MBOGO C.G

JUDGE

In the presence of ;

Mr.  Kwemboi  Court Assistant

No representation for the plaintiff and the defendant

Even though they had notice of today’s date

MBOGO C.G

JUDGE