ISSUE No. a). Whether the Preliminary Objection raised by the 1st Defendant herein meets the threshold of an objection based in Law and Precedent.
8.Under this sub – heading, the Honorable Court will deliberate on what constitutes a preliminary objection. This concept was well established in the famous case of “Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) EA. 696, where LAW J.A held on Page 700:-
9.It is trite law that an objection may be raised at any stage of the proceedings. The only emphasis is that it has to be purely on matters of law and not facts. The Honorable Court will spend a little bit of time to make this distinction from the case and the objection raised herein. The 1st Defendant challenges the suit on the basis of the pleadings filed by the Plaintiff. In so doing, the 1st Defendant maintains that the said pleadings were filed outside the statutory limitation period. As stated in Mukisa (supra) a plea of limitation is an example of a preliminary objection that has the capability of disposing the whole suit. In the case of “Joseph Mungai Wanene – Versus - Housing Finance Company of Kenya Limited (2017) eKLR, the court held that:-
10.In order to determine when exactly did the cause of action accrue in the Plaintiff’s case, I am guided by the provision of Section 7 of the Limitation of Action Act, Cap. 22.Section 7 provides:
11.In the Black’s Law Dictionary (Ninth Edition), a cause of action is defined as a combination of facts which entitles a person to obtain a remedy in court from another person and includes a right of a person violated or threatened violation of such right by another person. While the Black’s Law Dictionary (10th Edition) the word “accrue” means “to come into existence as an enforceable claim or right.”
12.In the case of “South Nyanza Sugar Company Limited – Versus - Joshua Aloo Aloo  eKLR it was held that:
13.The Court seeks to determine when the cause of action accrued to the plaintiff since from that time the limitation period of six years started running. From the Plaint dated 7th September 2022 the Plaintiff pleaded it became the registered owner of all that parcel of land known as Land Reference Numbers Mombasa/Block X/97 and a certificate of title was issued on 11th May 2010. Notwithstanding this, I have found out that most of the issues raised herein from the pleadings and the objection by the 1st Defendant are of factual nature which would require further interrogation during the full trial. For instance, the Plaintiff’s case is founded on the sub - lease entered between the late estate of George Ellam Wekesa, represented by the 2nd Defendant and the Sheikh Ali Taib Bajaber, represented by the 1st Defendant. The Plaintiff has averred that the 2nd Defendant in defiance of the lease between himself and the freehold proprietor of the suit property, which the Plaintiff had not named; illegally transferred the remainder of his lease to the 1st Defendant with effect from 25th November 2002.
14.Additionally, the Plaintiff’s claim is that the transfer between the 2nd and 1st Defendants are null and void and therefore unenforceable. However, despite the transfer between the 1st and 2nd Defendant being effected on 25th November 2002, I am of the view that the Plaintiff only got ‘the locus standi” to institute the suit against the Defendants on 11th May 2010 when it claims to have become the registered owner of the suit property. In my view, perhaps therefore, the Plaintiff’s cause of action matured and started to run when it acquired title to the suit property which according to the Plaint was on 11th May 2010. All these are matters of pure conjecture and may not be adequately determined through a preliminary objection but from a full trial. For these reason the objection fails.
Issue No. c). Who will bear the costs of the objection
18.It is now well established that issues of Costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action and proceedings of any litigation. The provision of Section 27 ( 1 ) of the Civil Procedure Act, of 2010 holds that costs follow the events. By events it means the outcome or result of any legal action or proceedings. See the decisions of Supreme Court in “Jasbir Rai Singh – Versus – Tarchalans, (2014) eKLR; and “Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”
19.In the instant case although the Preliminary objection has not been successful, but taking that the matter is still on going to full trial, its just fair and reasonable that each party bears their own costs.
VI. Conclusion & Findings
20.In view of the foregoing, on a preponderance of probabilities, it is apparent that the objection by the 1st Defendant herein is not sustainable and thus the Honorable Court proceeds to make the following orders:-a.That the Notice of Preliminary Objection dated 7th October 2022 be and is hereby disallowed.b.That the Defendants are ordered to fully comply with the provision of Orders 6, 7 and 11 of the Civil Procedures Rules, 2010 by filing their Defences, List of Documents and statements.c.That for expeditious sake this matter to be heard and disposed off within the next One Hundred and Eighty (180) days from the date of the delivery of this Ruling. There be a hearing on 5th October, 2023 and mention on 6th July, 2023 for compliance and conducting a Pre – Trial Conference on case management in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010.d.That each party to bear their own Costs.It is so ordered accordingly