Shihua Industry Alliance Limited v Liu & 3 others [2023] KEHC 27083 (KLR)

Shihua Industry Alliance Limited v Liu & 3 others (Civil Suit 65 of 2022) [2023] KEHC 27083 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27083 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 65 of 2022

DKN Magare, J

December 13, 2023

Between

Shihua Industry Alliance Limited

Plaintiff

and

Peter Liu

1st Defendant

Salma Mbauro

2nd Defendant

Kenya Ports Authority

3rd Defendant

Kenya Revenue Authority

4th Defendant

Ruling

1. Wonders never cease. In this court we shall see facts and postulations that defy logic. Justice Odunga and Justice Madan have lamented before regarding the kind of shenanigans I have seen in this matter. It is such conduct on the part of the Applicant that Odunga J (as he then was), alluded to in the case of Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR while referring to the reasoning of Madan J, (as he then was) in the case of N vs. N [1991] KLR 685, where the Learned Judge lamented as follows:“Parties and Counsel ought to give the courts some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

2. The applicant’s advocate in the application dated 24/11/2023 made a complete ass of everyone in court. He made the court and his colleagues doubt their sanity as he referred to completely alien proceedings. I had to re-re-read the Teams recording to know the absolute truth.

3. The grounds and certificate of urgency have absolutely no relevancy to the matter in issue. There is none of the parties that created a legitimate expectation that should the applicants not attend court, or decide to skive court, they will be indulged and treated with kid gloves. They don’t hide the fact that they do not want to proceed. Indeed the application does not seek to proceed with the defence case.

4. They sought to re-address the preliminary objection which I ruled on, on 8/5/2023. My understanding is that if I were wrong in the ruling of 8/5/2023, which may well be true, the Applicant was to seek more wisdom from a three judge bench of the court of Appeal, and if they also make mistakes, if certified to be heard by the supreme court. After that only God remains above them.

5. It is completely out of order to keep raising the same point. The issue of any preliminary objection the Applicant has is now foreclosed. A party must bring the entirety of their case they cannot litigate in installments.

6. Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the doctrine of Res Judicata in the following terms: -“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

7. The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms: -“Explanation.i.The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.ii.Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. iii. Explanation.iii.The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

8. In the dicta in re Estate of Riungu Nkuuri (Deceased) [2021] eKLR the court stated as follows: -“The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:i."The suit or issue was directly and substantially in issue in the former suit.ii.That former suit was between the same parties or parties under whom they or any of them claim.iii.Those parties were litigating under the same title.iv.The issue was heard and finally determined in the former suit.v.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”1. In the case of Attorney General & another ET vs (2012) eKLR where it was held that: -“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others (2001) EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”.

10. In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus: -“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

11. Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020] eKLR the court stated thus:“14. After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was resjudicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance.”

12. In Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment) the court stated doth:“By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application dated 11th January 2021 is res judicata. The issues in issue in that application were directly and substantially in issue in the application dated 13th September 2017. These issues relate to the same parties and these issues have been tried by a competent court. To my mind to bring the same issues between the same parties that have been determined by a court of competent jurisdiction is an abuse of the court process.”

13. The part dealing with preliminary issues and pendency of other cases are res judicata. If the plaintiff were wise, they will have noted that there is no case between the parties in court. If true they have a power of attorney, the plaintiff has a right to sue then on basis of abuse of trust. If they don’t have power of attorney, then they fraudulently used one to sue certain governmental agencies. They even had the audacity to move for contempt against government agencies.

14. Secondly, the court in the first instant must have jurisdiction. The subject matter, though not valued is timber in 34 containers. Traded internationally. They cannot be valued less than 20,000,000/=. It is clear beyond peradventure that the lower court has no jurisdiction over the subject matter. The decision therein cannot be a decision of a competent court. It is also not between the same parties.

15. I am disappointed in the unseemly prolixous grounds that the application is based. The summary of the grounds is that there was a breakdown of communication with the 2nd Applicant, there is a need for a forensic audit of the previous proceedings, and the applicants were condemned unheard. Thus constitution a gross violation of the constitutional right to liberty, benefit of law, legitimate expectation and rule of law. Having fixed the matter by consent and parties required to file there compliance documents, the Applicant was heard.

16. Further grounds are that only avenue of stay of execution of ex parte orders is available. The Applicants posit that there is imminent crystalisation of precipitate action against the 2nd respondent and it is in direct conflict with the right to be heard. They averred that there was immense loading on part of the port of loading and they also dealt with the merit of their case among other grounds all totaling to 16. Ironically, they have a penal notice at the foot of the application stating that “any party served with the application and failed to attend court on the date fixed, the matter shall proceed ex parte.

17. The application is supported by the affidavit of Salma Mbauro who states that’s she has authority and was surprised to receive a judgment notice. They say they did not know about the case till they saw local dailies and dealt with the initial preliminary objection. It appears they are classifying the preliminary objection I ruled on as a prelude to file another.

18. It is their case that there was a prior case, being ELCA N0 23 0f 2023. What she does not disclose is that she filed the suit in the lower court on behalf of the Plaintiff herein. She also does not disclose that she is not party nor is the 2nd defendant or any of the defendants herein a party to the said suit.

19. The ownership of the subject cargo is equally not in dispute. The dispute is different. She then laments how there is imminent execution and deals with merit of the case. She ignores the fact that the advocate attended court upto the date the matter was fixed for hearing. Indeed, she annexed a ruling to her affidavit that she has a power of Attorney for ZH Leung HK Trading and the Plaintiff herein.

20. From her evidence, it is clear that she was the plaintiff in the suit in the lower court and the subsequent Appeal. I cannot fathom, how a purported done can be working at cross purpose with a donor. However, over time I have learnt that though there is a limit to wisdom, there is no limit on how low lack thereof can go. I shall deal with this in my later decision.

21. The applicant forgets that the orders sought are discretionally in nature. They cannot move the court with fiat. They have to bring themselves within the sanctum of the bowels of equity. This is to say, they must first come with clean hands, be deserving of equity, and do equality themselves. Any inequitable conduct drives them out of the seat of justice.

22. In Siteyia v Gitome & 3 others [2015] eKLR, Justice R C N Kuloba, as then she was, stated as follows: --“In considering all these matters, the Court must act on the usual principles of equity. Accordingly, the Court will ensure that the applicant’s conduct is such as not to disentitle him to the Court’s assistance; the applicant must be fair and honest, and, in particular, there must be no acquiescence or delay. Thus, the Court will act on the well-known principles of equity, that he who seeks equity must do equity, and that he who comes into equity must come with clean hands. The applicant must come with equitable conditions generally imposed upon parties asking equitable relief.Where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an undertaking as to damages cannot compensate, the Court may in the public interest withhold the relief until a final determination of the rights of the parties, though the postponement may be burdensome to the applicant. This is but another application of the principle, that Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved; for example, to protect the national economy from the disruptive influence of inflation.”

23. Caeser’s wife is a darling of equity. Whoever comes to equity must come with clean hands. Coming with soiled hands, tainted truths and outright lies disentitles a party from equitable relieves. A part who seeks to obstruct justice is a candidate for the darkroom of equity. In Tecno Holdings Limited & 4 others v National Social Security Fund Board of Trustees [2018] eKLR, Justice L Komingoi, stated as doth: -“the case of Samuel Kipkorir Ngeno And Another –versus- Local Authorities Pension Trust (Registered Trustees) And Another (2013) eKLR it was held that;“A tenant first and main obligation is to pay rent as and when it becomes due for the landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who in in huge arrears is underserving of the courts discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligations of paying rent as and when it becomes due.” 28. I am guided by the above authority in finding that the 1st Plaintiff is not deserving of this court’s protection since it has failed to remit the rent due.”

24. The Applicant agreed with the other parties to file compliance within a certain period. As the period passed, the defendants had sought to file a defence and were allowed. There was nothing filed by the hearing date. At least had they complied, they could then raise the question of non-attendance. They don’t even want to file documents the want to set aside proceedings to be able to raise a preliminary objection they have not filed.

25. The respondent’s sole director, Yao Bao swore a replying affidavit stating that these were not ex parte proceedings the date having been taken by consent.

26. They also state that the there is no money decree. They state that ELC 23 of 2019 was between different parties.

27. Other than claiming that there is another suit, the applicants do not deny that the subject goods belong to the Plaintiff. They have not set up any specie of defence. They have not stated that they have not been paid. In the unlikely event I allow this application, what is it am I to hear? It is over one year since the Applicant field notice of Appointment. They have not raised any issue on summons till now.

28. When history of Mombasa law courts is written, in its 121 years of existence, this case may get a foot note. This is a classic case where fraudsters have the audacity to procrastinate a matter at whims, and then come to court demanding justice with menaces. What is not in dispute was that the plaintiff, a company incorporated in Hong Kong, filed this suit on 28/9/2022 against 5 defendants. They also filed an application dated 19/9/2022. Seeking various orders to protect 34 containers of rare wood imported from Madagascar, which was in transit.

29. As happened in this kind of matters, the Applicant appear to have ratted the Plaintiff to have timber impounded by a multi agency team. The 1st and second defendants moved the court through a miscellaneous applications numbers 328 and 329 of 2017. They did this in the name of the Plaintiff and got orders to have timber released to themselves. It is rare to have a plaintiff philanthropic enough to sue a party for purpose of release multimillion cargo to the defendant.

30. There was an Appeal by the Kenya wild life service in ELCA 23 of 2019. It does not take magic or voodoo to know that the lower court had no jurisdiction to handle 34 containers. It should be recalled that Misc. Application is not a suit by dint of Order 3 Rule 1 of the Civil Procedure Rules, which provide as doth: -“1. Commencement of suit and case track allocation [Order 3, rule 1. ]1. Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.”

31. A miscellaneous Application remains that, miscellaneous. In all material aspects there was no suit in the lower court. The issue of res judicata remains moot as there were no previous proceedings over the same subject matter.

32. I am perturbed by the kind of procrastination and sharp practice by the 1st and 2nd defendant’s advocates are engaged in. they filed a notice of preliminary objection. I cannot trace several documents, in the court file, which are however on the online plat form. Even the 1st and 2nd respondent’s Notice of Appointment is not on the court file.

33. They filed a notice of Appointment, and took a hearing date by consent but are interested in other eventualities other than hearing. The court had ordered way back on 18/7/2023 that compliance documents be filed. The Applicant did not raise any issue with summons. They now say they are not served and they have another preliminary objection way back on 24/10/2022. Instead of complying, they stated that they skived court.

34. In the initial proceedings related to the ruling of 5/10/2022 the court had given directions on compliance. Instead of compliance, on 2/11/2022, they sought time to place the preliminary objection on record. On 15/11/2022, the court gave directions on hearing of the preliminary objection. On 27/2/2023, I gave directions on hearing. I heard the preliminary objection. And delivered ruling on 8/5/2023.

35. I directed compliance within 21 days. The 5th Applicant so it to be removed and I ordered that they be removed. The 1st and second defendants objected to the same. I gave the following directions: - parties to file pleadings and paginated and referenced bundles by 17/8/2023. The affidavits of service be filed by 22/8/2023 and hearing on 24/10/2023.

36. On the hearing date only Mr Gitonga turned up. I had a witness from china and this was translated by Mr. We Peng Fei, certified court interpreter. After submissions were filed, the Applicant filed the application herein.

37. The said application was opposed. The first and second defendants pleaded in the plaint to be fraudsters who are trading in the name of the plaintiff. They admit to trading in the name of the plaintiff but as holders of power of attorney.

38. However, they have to date not filed defence. At least I gave directions on filing of the same on 5/8/2023. There was no appeal from my decision. If there was I there could be a notice on the file.

39. The suit is regular. The order for filing of pleadings was made on the request of Mr Igunza. Even if he thought that the next pleading was a preliminary objection, he should have filed the same. Whether or not he mis-diriased, the two periods for compliance have not been comply with. What he calls misdiarising is not true. It is a fraudulent entry at the end of some page in some unknown diary. I find and hold that the hearing was thus proper and regular. The same was not exparte.

40. I need to disabuse the Applicants that the right to hearing is sacrosanct. Only a right to fair trial is sacrosanct. The right to be heard can be derogated from where a party does not wish to be heard as in this case. The next question is whether the threshold for setting aside has been met. I asked the applicants whether they were in a position, to refund USD 1,400-USD 1500 used by the witness herein. The Advocate was evasive in that respect.

41. Though costs are not important in determining the Application, the answer gave me an inkling on the Applicants’ animus. They were not interested in the trial but in delaying the case. These were regular proceedings. To be able to set them aside there is a requisite threshold to be met. In Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR, the court while addressing ex parte judgment had the following to say:“In this case the grounds upon which the application to set aside the judgement was made were twofold. First it was contended that the Appellants were never notified of the stages of proceedings before the trial court. Secondly, and a s a result, they were denied of an opportunity to file their submissions and bring to the attention the status of the appeal on the basis of which a stay had been granted.As was held by the Court of Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173:“In an application for setting aside ex parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgement is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not considered at all and indeed could not be considered without the appellant’s input..... What the Trial Court should have done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.”

42. The test is the same regarding discretion in setting aside ex parte judgement and proceedings as seen in the case of Pindoria Construction Ltd vs. Ironmongers Sanytaryware Civil Appeal No. 16 of 1976 it was held that: -“It is a common ground that it is a matter for discretion whether or not to set aside a judgement under rule 8 of Order 9B of the Civil Procedure Rules. It is also well settled that the Court of Appeal will not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice… The appellant was not altogether free from blame. He could have tried harder to be present at the date of hearing. He delayed considerably in filing his application to set aside the ex parte judgement. The trial Judge’s exasperation at his behaviour was understandable. Although he should not have been precluded from defending the claim against him he has to be penalised to some extent in view of his somewhat dilatory actions.”

43. In this case, the entire blame is on the Applicant. He has ignored ecvery order. Every attendance from October last year to date, he has some kind of preliminary objection.

44. In the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd [1969] E.A. 696, the former court of Appeal for Eastern Africa the following observation: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increases costs and, on occasion, confuses issues. This improper practice should stop"

45. It appears that the issue of multiple and baseless preliminary objections is not going to stop soon. Recently in Hammers Incorporation Co. Ltd Versus The Board of Trustees of the Cashewnut Industry Development Trust Fund, the Court of Appeal sitting in Dar Es Salaam (Rutakangwa, N. P. Kimaro and S. S. Kadage JJA), in their decision given on 17/9/2015 regretted that the practice of raising preliminary objection that was frowned upon by the court of appeal in Kampala in the Mukisa biscuit case(Supra) still persists. They stated as doth: -“It was hoping against hope. We believe that had that Court survived to this day it would have issued a sterner warning. This is because the "improper practice" never stopped. Neither did it ebb away. On the contrary, it is on the increase. This forced the Full Bench of this Court in Karata Ernest & Others V The Attorney General, Civil Revision No. 10 of 2010 (unreported) to mildly urge all parties in judicial proceedings to pay heed to what was aptly pronounced in the MUKISA BISCUIT case (supra). The late call appears to be falling on deaf ears as this ruling will demonstrate.”

46. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, justice Kiarie Waweru Kiarie, summarized the preliminary objection nicely as seen from two of the judges in Mukisa Biscuit Manufacturing Co. Ltd(supra): -“A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:. 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 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.At page701 paragraph B-C Sir Charles Newbold, P. added the following: A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”

47. A Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest & Others vs Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29 December 2010),( Luanda, J.A. , Ramadhani, C.J. , Rutakangwa, JJA), put the issue of preliminary objections in a more succinct manner: -“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.

48. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR:“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

49. It is therefore my view that a preliminary objection must be based on current law, and be factual in its constitution. It cannot be based on disputed facts or fats requiring further enquiry. A Preliminary objection cannot be a mainstay of a suit. The Applicant cannot threaten to raise preliminary objections at every step. There is nothing on the record showing what defence the Applicants have.

50. There is no draft defence or anything in the affidavit to show that they have a defence to the claim. None is disclosed. I don’t know the basis for the Applicant wanting to be heard. If they had anything useful to say, it should be the court by now. I noted that parties decided to swear false affidavits reflecting a position not in the court file. They cannot explain where they were on 24/10/2023. This matter was cause listed. This was not the only matter the advocates for the Applicants had that week. They also do not explain their whereabouts. The Applicants cannot blame their advocates when they have not instructed them they are always available to swear affidavits but not witness statements. The practice of swearing false affidavits and intending to steal a match should stop.

51. The case was placed on a cause list when I was also deliberating a myriad of judgments and rulings. There is absolutely no chance that the Applicant’s advocates did not know the date. The delay is deliberate and meant to test the mettle of the court. I will use words of C B Madan as then he was, while sitting as a bench including Miller and Potter JJA in the case of Butt v Rent Restriction Tribunal [1979] eKLR“A judge is a judge whether he is newly appointed or an old fogy. The former has the benefit of his latest learning, the latter the advantage of experience. Both are men of honour and scholarly gentlemen. Both are conscientious and judicious individuals and imbued with reason. Both are dependable and do not make wild surmises. Both act upon consecrated principles. Both get a fair share of juristic spills. Both are jealously scrupulous and impartial. Both are 24-carat gold. Both act free from doubt, bias and prejudice. Both carry the conviction of the correctness of their decision. Both speak no ill of any litigant. Both are torch bearers for the stability of society. Both are strugglers for liberty. Neither should, however, become an advisor instead of an adjudicator. The litigants and their professional advisors are the best judges of their affairs. If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant after the proceedings.”

52. Taking a cue from the sage, I need to point out for the umpteenth time that I cannot pronounce myself on issues I have already done. I cannot stop an advocate or their client from traveling a road full of perils, wreckages, and broken legs. The court however has no one to wait for. The kind of machinations and insidious perfidy has no place in the current constitutional dispensation.

53. The court cannot set aside regular proceedings based on whims, caprice, and arbitrary postulations, the court has to exercise discretion judiciously. The proceedings were proper and nothing is showing a mistake on the part of the Respondents. The applicant has failed to demonstrate that I can set aside the proceedings or arrest the judgment due tomorrow. It shall accordingly be delivered as scheduled.

54. The net effect is that the Application dated 24/11/2023 lacks merit and is accordingly dismissed with costs of 30,000/=.

Determination 55. Consequently, I determine the said application as follows: -i.The application dated 24/11/2023 lacks merit. It is accordingly dismissed with costs of 30,000/= payable in 30 daysii.Judgment be delivered as scheduled on 14/12/2023 without arguments or cavil.iii.Though I have to release the file forthwith, I shall retain the file till tomorrow to read the judgment, which is also ready.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 13TH DAY OF DECEMBER 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.……………………..KIZITO MAGAREJUDGEIn the presence of: -Mr. Gitonga for the PlaintiffNo appearance for Kenya Revenue AuthorityNo appearance for Kenya Ports Authority Mr. Nyandieka for KRA for OchiengPage 9 of 9 M.D. KIZITO, J.