'
I. Introduction
1. What is before th Honourable Court for its determination is Notice of Preliminary objection dated 10th May 2024 raised by Hellen Njeri Chege, the 2nd Respondents herein. Fundamentally, the basis of the objection is based under the following grounds that:-
a) That the entire suit is bad in law, incompetent, on-starter, inept and an abuse of the court process and the same ought to be struck out.
b) That the pleadings are incurably and fatally defective as they do not reveal the time in which the Applicant claimed to have come into adverse possession of the land. This is scandalous, frivolous and vexatious in so far as it discloses no basis for the initiation of the claim against the respondents to justify the expending of judicial time, and consequently make it impossible for the respondents to craft a reasonable defense.
c) That the Applicant is estopped from making a claim for adverse possession in reference to the suit property as they made contrary claims to the title vide “Mombasa Case No 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi [Deceased] – Versus - the estate of Daniel Chege Karanja.
d) That the Applicant is estopped from making factual claims to continuous possession of the suit property as they made contrary claims vide Mombasa case no 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi[Deceased] v the estate of Daniel Chege Karanja.
e) That the Applicant is in contempt of order to pay costs against the Respondents over the same suit property as was decided in Mombasa case no 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi[Deceased] v the estate of Daniel Chege Karanja.
f) That the Applicant’s application is frivolous and vexatious abuse of the court process and amounts to forum shopping
II. The Applicants case
2. The Applicant through the Law firm of Messrs. Mungai Kamau & Co Advocates filed Grounds of Opposition to the preliminary objection. It raised the following grounds in opposition:-
a) That the Notice of Ppreliminary objection dated 10th May 2024 by the 2nd Respondent was fatally defective, incompetent, null and void since it raises no points of law.
b) That the Notice of Preliminary objection dated 10th May 2024 by the 2nd Respondent is purely factual, requires proof by way of facts and never met the mandatory legal requirements for a preliminary objection
c) That the said Notice of Preliminary Objection was meant to delay the hearing and determination of the suit herein. It was therefore a gross abuse of the Court process and it should be struck out with costs to the Plaintiff.
III. Submissions.
3. On 19th June, 2025, while all the parties were present in Court, they were directed to have the Notice of Preliminary objection dated 10th May 2024 be disposed of by way of written submissions. Unfortunately, by the time the Court was proceeding to pen down this Ruling, none of the parties had complied within the stipulated timelines. Thus, the court proceeded to set a ruling was to be delivered on merit on 6th October 2025 accordingly.
IV. Analysis & Determination.
4. I have carefully read and considered the pleadings herein by the Applicant and the Respondent herein, the relevant provisions of the Constitution of Kenya, 2010 and statures.
5. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has framed the following two [2] salient issues for its determination. These are:
a) Whether the Preliminary objection dated 10th May, 2024 is merited in accordance with the laid - down threshold by Laws and Precedents?
b) Who bears the costs of the Notice of Preliminary objection dated 10th May 2024?
ISSUE No. b). Whether the Preliminary objection dated 10th May 2024 is merited in accordance with the laid - down threshold by Laws and Precedents.
6. Under this sub - title, the Honourable Court shall examine the merits of the Preliminary objection. According to the Black Law Dictionary a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
7. The above legal preposition has been made graphically clear in the now famous case of: “Mukisa Biscuits Manufacturing Co. Limited (Supra)” where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that:-
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued 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 in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
8. In furtherance of this point, I wish to cite the Supreme Court in the case of: “Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR” where the Court made the following observation as relates to Preliminary Objections:
“……. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
9. Additionally, the Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of: “Karata Ernest & others – Versus - Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA)”, put the issue of preliminary objections in a more concise 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.
10. Also I further wish to refer to the matter of:- “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “inter alia”: -
a. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
b. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
c. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
11. This court having made a finding on the description of a preliminary objection, it is not in doubt that a preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. In the case of:- “Quick Enterprises Limited – Versus - Kenya Railways Corporation, Kisumu HCCC No.22 of 1999”, the court held that: -
“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”
12. It is also this court’s view that in determining a preliminary objection, the court will consider that the preliminary objection must stem from the pleadings and raise pure point of law. See the case of:- “Avtar Singh Bhamra & Another – Versus - Oriental Commercial Bank, Kisumu HCCC No.53 of 2004”, where the court held that:-
“A preliminary objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”
13. In the instant case, the objection raised has been vigorously challenged herein. the Applicant herein has raised several grounds to be ascertained in cementing the legitimacy of the preliminary objection. It has been stated that the pleadings herein do not reveal the time in which the applicant claimed to have come into adverse possession of the suit property. Further that the issues have already been dealt with and the suit is a replica of the case of:- “Mombasa Case No 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi [Deceased] – Versus - the estate of Daniel Chege Karanja” and thus against the legal “doctrine of Res Judicata”.
14. The provision of Section 7 of the Civil Procedure Act, Cap. 21 lays the basis for “the doctrine of Res Judicata” which provides that:-
“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.”
15. The doctrine was discussed in the case of “Independent Electoral & Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”, where the Supreme Court held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
“(a)The suit or issue was directly and substantially in issue in the former suit.
(b) That former suit was between the same parties or parties under whom they or any of them claim.
(c) Those parties were litigating under the same title.
(d) The issue was heard and finally determined in the former suit.
(e) 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.”
16. It is my formed belief, although the Doctrine of Res Judicata is a legal issue but in order to establish whether it exists or not would lead to the court causing intensive interrogation of the pleadings. In this case, the Court would have to probe through a full trial of the aforestated Mombasa suit. It follows therefore, that the moment we embark on this interrogation, then the Court will definitely be dealing with an issue of ascertaining facts. For that reason I do not find that the point of res judicata has been properly raised in the preliminary objection. I am in agreement with the court’s decision in the case of:- “Henry Wanyama Khaemba – Versus - Standard Chartered Bank Limited & Another [2014] eKLR, the Court held that:-
“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of Res Judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objections. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections improperly."
17. It is further noted that the Applicant is accused of contempt in failure to pay costs in “the Mombasa case no. 100 of 2018 Ali Said Boi [suing as the Administrator of the Estate of Ali Omar Boi [Deceased] – Versus - the Estate of Daniel Chege Karanja”. The 2nd Respondent/Applicant is of the firm belief that the proceedings in the former suit are still pending and as such this court should not entertain the originating summons filed before it a clear indication that the suit is “sub judice”.
18. The provisions of Section 6 of the Civil Procedure Act, Cap. 21 defines the above principle or the doctrine as follows:-
‘‘No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.’’
19. In considering whether the instant suit is sub judice, this court will be required to ascertain through the empirical documentary evidence which would defeat the whole purpose of what a preliminary objection constitutes. Where the court is called to draw inference to that which is outside the pleadings herein, or that which is not a pure point of law, the preliminary objection is then defeated. This court is persuaded by the findings in the case of:- “Oraro Versus Mbaja (2005) 1KLR 141”, where the Court held that:-
“Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.
20. For the foregoing reasons, therefore, I discern that the Preliminary Objection is not only baseless, misplaced but also unfounded and thus must be dismissed hereof.
ISSUE No. b). Who bears the costs of the Preliminary objection dated 10th May 2024?
21. It is now well established that issues of costs are at the discretion of the Court. Costs are the awards granted to any party at the conclusion of any legal action or proceedings in any litigation. The proviso of the Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event unless the court for some good reason orders otherwise. By the event it means the results or outcome of the said legal action or proceedings.
22. I wish to point out that whenever costs are sought it is not with the intention to punish the Applicant but rather for compensation for the trouble the Respondent has gone through defending the suit and prosecuting the case and restore them in the position as it were prior to the institution of proceeding against them. See the case of “Rosemary Wairimu Munene Ex-parte Applicant – Versus - Ihururu Party Farmers’ Cooperative Society J.R. No. 4/2014” as cited in the case of “Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & Another [2016] eKLR”.
23. In the instant case, the Court opines that it is reasonable, fair and proper for the Applicant to have the costs of the Preliminary Objection.
V. Conclusion & findings
24. Arising from the indepth analysis of the framed issues herein, the Honourable Court proceeds to specifically make the following orders. These are:-
a) THAT the Notice of Preliminary Objection dated 10th May, 2024 be and is hereby dismissed for lack of merit.
b) THAT for expediency sake, this matter be fixed for Pre – Trial Conference on 10th February, 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing of the matter on 21st April, 2026 through Physical means.
c) THAT the costs of the objections to be awarded to the 1st & 2nd Respondents to be borne by the Applicant herein.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ……………..11TH………. DAY OF …….NOVEMBER …….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) M/s. Washalla Advocate holding brief for Mr. Mungai Kamau Advocate for the Applicant.
c) No appearance for the 1st & 2nd Respondents.
'1. What is before th Honourable Court for its determination is Notice of Preliminary objection dated 10th May 2024 raised by Hellen Njeri Chege, the 2nd Respondents herein. Fundamentally, the basis of the objection is based under the following grounds that:-
a) That the entire suit is bad in law, incompetent, on-starter, inept and an abuse of the court process and the same ought to be struck out.
b) That the pleadings are incurably and fatally defective as they do not reveal the time in which the Applicant claimed to have come into adverse possession of the land. This is scandalous, frivolous and vexatious in so far as it discloses no basis for the initiation of the claim against the respondents to justify the expending of judicial time, and consequently make it impossible for the respondents to craft a reasonable defense.
c) That the Applicant is estopped from making a claim for adverse possession in reference to the suit property as they made contrary claims to the title vide “Mombasa Case No 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi [Deceased] – Versus - the estate of Daniel Chege Karanja.
d) That the Applicant is estopped from making factual claims to continuous possession of the suit property as they made contrary claims vide Mombasa case no 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi[Deceased] v the estate of Daniel Chege Karanja.
e) That the Applicant is in contempt of order to pay costs against the Respondents over the same suit property as was decided in Mombasa case no 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi[Deceased] v the estate of Daniel Chege Karanja.
f) That the Applicant’s application is frivolous and vexatious abuse of the court process and amounts to forum shopping
II. The Applicants case
2. The Applicant through the Law firm of Messrs. Mungai Kamau & Co Advocates filed Grounds of Opposition to the preliminary objection. It raised the following grounds in opposition:-
a) That the Notice of Ppreliminary objection dated 10th May 2024 by the 2nd Respondent was fatally defective, incompetent, null and void since it raises no points of law.
b) That the Notice of Preliminary objection dated 10th May 2024 by the 2nd Respondent is purely factual, requires proof by way of facts and never met the mandatory legal requirements for a preliminary objection
c) That the said Notice of Preliminary Objection was meant to delay the hearing and determination of the suit herein. It was therefore a gross abuse of the Court process and it should be struck out with costs to the Plaintiff.
III. Submissions.
3. On 19th June, 2025, while all the parties were present in Court, they were directed to have the Notice of Preliminary objection dated 10th May 2024 be disposed of by way of written submissions. Unfortunately, by the time the Court was proceeding to pen down this Ruling, none of the parties had complied within the stipulated timelines. Thus, the court proceeded to set a ruling was to be delivered on merit on 6th October 2025 accordingly.
IV. Analysis & Determination.
4. I have carefully read and considered the pleadings herein by the Applicant and the Respondent herein, the relevant provisions of the Constitution of Kenya, 2010 and statures.
5. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has framed the following two [2] salient issues for its determination. These are:
a) Whether the Preliminary objection dated 10th May, 2024 is merited in accordance with the laid - down threshold by Laws and Precedents?
b) Who bears the costs of the Notice of Preliminary objection dated 10th May 2024?
ISSUE No. b). Whether the Preliminary objection dated 10th May 2024 is merited in accordance with the laid - down threshold by Laws and Precedents.
6. Under this sub - title, the Honourable Court shall examine the merits of the Preliminary objection. According to the Black Law Dictionary a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
7. The above legal preposition has been made graphically clear in the now famous case of: “Mukisa Biscuits Manufacturing Co. Limited (Supra)” where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that:-
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued 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 in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
8. In furtherance of this point, I wish to cite the Supreme Court in the case of: “Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR” where the Court made the following observation as relates to Preliminary Objections:
“……. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
9. Additionally, the Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of: “Karata Ernest & others – Versus - Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA)”, put the issue of preliminary objections in a more concise 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.
10. Also I further wish to refer to the matter of:- “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “inter alia”: -
a. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
b. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
c. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
11. This court having made a finding on the description of a preliminary objection, it is not in doubt that a preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. In the case of:- “Quick Enterprises Limited – Versus - Kenya Railways Corporation, Kisumu HCCC No.22 of 1999”, the court held that: -
“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”
12. It is also this court’s view that in determining a preliminary objection, the court will consider that the preliminary objection must stem from the pleadings and raise pure point of law. See the case of:- “Avtar Singh Bhamra & Another – Versus - Oriental Commercial Bank, Kisumu HCCC No.53 of 2004”, where the court held that:-
“A preliminary objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”
13. In the instant case, the objection raised has been vigorously challenged herein. the Applicant herein has raised several grounds to be ascertained in cementing the legitimacy of the preliminary objection. It has been stated that the pleadings herein do not reveal the time in which the applicant claimed to have come into adverse possession of the suit property. Further that the issues have already been dealt with and the suit is a replica of the case of:- “Mombasa Case No 100 of 2018 Ali Said Boi [suing as the administrator of the estate of Ali Omar Boi [Deceased] – Versus - the estate of Daniel Chege Karanja” and thus against the legal “doctrine of Res Judicata”.
14. The provision of Section 7 of the Civil Procedure Act, Cap. 21 lays the basis for “the doctrine of Res Judicata” which provides that:-
“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.”
15. The doctrine was discussed in the case of “Independent Electoral & Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”, where the Supreme Court held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
“(a)The suit or issue was directly and substantially in issue in the former suit.
(b) That former suit was between the same parties or parties under whom they or any of them claim.
(c) Those parties were litigating under the same title.
(d) The issue was heard and finally determined in the former suit.
(e) 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.”
16. It is my formed belief, although the Doctrine of Res Judicata is a legal issue but in order to establish whether it exists or not would lead to the court causing intensive interrogation of the pleadings. In this case, the Court would have to probe through a full trial of the aforestated Mombasa suit. It follows therefore, that the moment we embark on this interrogation, then the Court will definitely be dealing with an issue of ascertaining facts. For that reason I do not find that the point of res judicata has been properly raised in the preliminary objection. I am in agreement with the court’s decision in the case of:- “Henry Wanyama Khaemba – Versus - Standard Chartered Bank Limited & Another [2014] eKLR, the Court held that:-
“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of Res Judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objections. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections improperly."
17. It is further noted that the Applicant is accused of contempt in failure to pay costs in “the Mombasa case no. 100 of 2018 Ali Said Boi [suing as the Administrator of the Estate of Ali Omar Boi [Deceased] – Versus - the Estate of Daniel Chege Karanja”. The 2nd Respondent/Applicant is of the firm belief that the proceedings in the former suit are still pending and as such this court should not entertain the originating summons filed before it a clear indication that the suit is “sub judice”.
18. The provisions of Section 6 of the Civil Procedure Act, Cap. 21 defines the above principle or the doctrine as follows:-
‘‘No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.’’
19. In considering whether the instant suit is sub judice, this court will be required to ascertain through the empirical documentary evidence which would defeat the whole purpose of what a preliminary objection constitutes. Where the court is called to draw inference to that which is outside the pleadings herein, or that which is not a pure point of law, the preliminary objection is then defeated. This court is persuaded by the findings in the case of:- “Oraro Versus Mbaja (2005) 1KLR 141”, where the Court held that:-
“Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.
20. For the foregoing reasons, therefore, I discern that the Preliminary Objection is not only baseless, misplaced but also unfounded and thus must be dismissed hereof.
ISSUE No. b). Who bears the costs of the Preliminary objection dated 10th May 2024?
21. It is now well established that issues of costs are at the discretion of the Court. Costs are the awards granted to any party at the conclusion of any legal action or proceedings in any litigation. The proviso of the Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event unless the court for some good reason orders otherwise. By the event it means the results or outcome of the said legal action or proceedings.
22. I wish to point out that whenever costs are sought it is not with the intention to punish the Applicant but rather for compensation for the trouble the Respondent has gone through defending the suit and prosecuting the case and restore them in the position as it were prior to the institution of proceeding against them. See the case of “Rosemary Wairimu Munene Ex-parte Applicant – Versus - Ihururu Party Farmers’ Cooperative Society J.R. No. 4/2014” as cited in the case of “Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & Another [2016] eKLR”.
23. In the instant case, the Court opines that it is reasonable, fair and proper for the Applicant to have the costs of the Preliminary Objection.
V. Conclusion & findings
24. Arising from the indepth analysis of the framed issues herein, the Honourable Court proceeds to specifically make the following orders. These are:-
a) THAT the Notice of Preliminary Objection dated 10th May, 2024 be and is hereby dismissed for lack of merit.
b) THAT for expediency sake, this matter be fixed for Pre – Trial Conference on 10th February, 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing of the matter on 21st April, 2026 through Physical means.
c) THAT the costs of the objections to be awarded to the 1st & 2nd Respondents to be borne by the Applicant herein.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ……………..11TH………. DAY OF …….NOVEMBER …….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) M/s. Washalla Advocate holding brief for Mr. Mungai Kamau Advocate for the Applicant.
c) No appearance for the 1st & 2nd Respondents.