' Introduction and Background
1. I have carefully considered the Notice of Preliminary Objection raised by the 1st respondent, which challenges the competency of the application dated 20th March 2025 on the ground that it is fatally defective for not being anchored on a substantive suit. I have also considered the oral and written submissions in support of and in opposition to the objection.
Analysis and Determination
2. The applicant contends that the preliminary objection is improperly framed. It is contended that it raises factual disputes, specifically, whether filing fees were paid for the plaint, thereby rendering it unsuitable for determination at the preliminary stage. This submission, however, reflects a fundamental misapprehension of the legal threshold applicable to preliminary objections. The governing principle is well articulated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696, that a preliminary objection must be founded on a pure point of law which has been pleaded or which arises by clear implication out of pleadings, and is capable of disposing of the suit if upheld.
3. In this case, the relevant documents including receipts of filings are part of the official Court record. As such, they are presumed to be authentic and accurate representations of the pleadings and filings made by the parties. They do not require further evidentiary proof unless specifically challenged, which is not the case herein and are therefore amenable to judicial notice. The presence or absence of a plaint, the date of filing, and whether filing fees were paid can be ascertained directly from the CTS without the need for oral evidence or affidavit-based proof. The issue here is whether the application as filed is properly anchored on a suit, which is a threshold legal issue. Accordingly, the preliminary objection is properly framed and ripe for determination.
4. Turning to the substance of the objection, the legal position is well settled that an application for interim relief must be grounded in a substantive suit. In Cresta Investments Ltd v Gulf African Bank Ltd & Another [2020] KEHC 993 (KLR), this Court (Majanja J) stated that:
“An application for injunction under Order 40 of the Civil Procedure Rules is predicated on a suit filed by the party seeking the injunction. An injunction without a substantive claim is a plea in vain and cannot lie in law or at all.”
5. This principle was reaffirmed in Mbugua & Another v Mbugua & 4 Others [2024] KEHC 2403 (KLR), where the Court emphasized that injunctive relief can only issue where a substantive suit exists. Similarly, in Proto Energy Limited v Hashi Energy Limited [2019] KEHC 12311 (KLR), the Court underscored that a Notice of Motion is not a recognized originating process and must be filed within a properly instituted suit.
6. Payment of court filing fees is not a mere procedural formality, it is a jurisdictional prerequisite to the valid institution of a suit. Without the payment of such fees, a plaint cannot be deemed to have been properly filed, and consequently, no suit exists before the Court. I have personally verified from the CTS that indeed, the plaint referred to in this matter has not been filed within the meaning of having paid the requisite filing fees.
7. The respondent contends that the defect is curable by dint of Section 96 of the Civil Procedure Act. This provision empowers the Court, in its discretion, to permit the payment of prescribed fees at any stage of the proceedings, and upon such payment, to deem the relevant document as having been properly filed. However, this discretion is not absolute; it is permissive and must be exercised judiciously, based on the circumstances of each case.
8. In Ngigi v Momai Investments Limited [2023] KEHC 17344 (KLR), the Court affirmed that Section 96 is intended to provide relief in cases where there is a genuine and explainable lapse in the payment of fees. The provision is not a blanket excuse for procedural non-compliance, nor does it operate automatically. The party seeking the Court’s indulgence must demonstrate sufficient cause for the default and must do so with candor and diligence.
9. In the present case, no such cause has been demonstrated. On the contrary, as observed by Senior Counsel Kiragu Kimani, the applicant has not been forthright about the status of the filing fees. There has been no clear disclosure as to whether the fees were paid, nor any attempt to regularize the position by seeking the Court’s leave. Instead, the applicant has maintained that the issue is a mere technicality, thereby trivializing a jurisdictional defect that goes to the root of the proceedings.
10. This lack of candor and failure to engage with the Court in good faith undermines any basis for the exercise of discretion under Section 96. The provision is not intended to shield parties who are indifferent to procedural compliance or who seek to circumvent the foundational requirements of instituting a suit. Payment of filing fees is a jurisdictional prerequisite; without it, there is no properly instituted suit upon which the application for injunctive relief can stand.
Disposition
11. In light of the foregoing, I find merit in the preliminary objection. The application dated 20th March 2025 is hereby struck out for being incompetent. Although the respondent has succeeded in the objection, I am of the view that the applicant has already borne the consequence of the striking out. Accordingly, I make no order as to costs.
'
1. I have carefully considered the Notice of Preliminary Objection raised by the 1st respondent, which challenges the competency of the application dated 20th March 2025 on the ground that it is fatally defective for not being anchored on a substantive suit. I have also considered the oral and written submissions in support of and in opposition to the objection.
Analysis and Determination
2. The applicant contends that the preliminary objection is improperly framed. It is contended that it raises factual disputes, specifically, whether filing fees were paid for the plaint, thereby rendering it unsuitable for determination at the preliminary stage. This submission, however, reflects a fundamental misapprehension of the legal threshold applicable to preliminary objections. The governing principle is well articulated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors [1969] EA 696, that a preliminary objection must be founded on a pure point of law which has been pleaded or which arises by clear implication out of pleadings, and is capable of disposing of the suit if upheld.
3. In this case, the relevant documents including receipts of filings are part of the official Court record. As such, they are presumed to be authentic and accurate representations of the pleadings and filings made by the parties. They do not require further evidentiary proof unless specifically challenged, which is not the case herein and are therefore amenable to judicial notice. The presence or absence of a plaint, the date of filing, and whether filing fees were paid can be ascertained directly from the CTS without the need for oral evidence or affidavit-based proof. The issue here is whether the application as filed is properly anchored on a suit, which is a threshold legal issue. Accordingly, the preliminary objection is properly framed and ripe for determination.
4. Turning to the substance of the objection, the legal position is well settled that an application for interim relief must be grounded in a substantive suit. In Cresta Investments Ltd v Gulf African Bank Ltd & Another [2020] KEHC 993 (KLR), this Court (Majanja J) stated that:
“An application for injunction under Order 40 of the Civil Procedure Rules is predicated on a suit filed by the party seeking the injunction. An injunction without a substantive claim is a plea in vain and cannot lie in law or at all.”
5. This principle was reaffirmed in Mbugua & Another v Mbugua & 4 Others [2024] KEHC 2403 (KLR), where the Court emphasized that injunctive relief can only issue where a substantive suit exists. Similarly, in Proto Energy Limited v Hashi Energy Limited [2019] KEHC 12311 (KLR), the Court underscored that a Notice of Motion is not a recognized originating process and must be filed within a properly instituted suit.
6. Payment of court filing fees is not a mere procedural formality, it is a jurisdictional prerequisite to the valid institution of a suit. Without the payment of such fees, a plaint cannot be deemed to have been properly filed, and consequently, no suit exists before the Court. I have personally verified from the CTS that indeed, the plaint referred to in this matter has not been filed within the meaning of having paid the requisite filing fees.
7. The respondent contends that the defect is curable by dint of Section 96 of the Civil Procedure Act. This provision empowers the Court, in its discretion, to permit the payment of prescribed fees at any stage of the proceedings, and upon such payment, to deem the relevant document as having been properly filed. However, this discretion is not absolute; it is permissive and must be exercised judiciously, based on the circumstances of each case.
8. In Ngigi v Momai Investments Limited [2023] KEHC 17344 (KLR), the Court affirmed that Section 96 is intended to provide relief in cases where there is a genuine and explainable lapse in the payment of fees. The provision is not a blanket excuse for procedural non-compliance, nor does it operate automatically. The party seeking the Court’s indulgence must demonstrate sufficient cause for the default and must do so with candor and diligence.
9. In the present case, no such cause has been demonstrated. On the contrary, as observed by Senior Counsel Kiragu Kimani, the applicant has not been forthright about the status of the filing fees. There has been no clear disclosure as to whether the fees were paid, nor any attempt to regularize the position by seeking the Court’s leave. Instead, the applicant has maintained that the issue is a mere technicality, thereby trivializing a jurisdictional defect that goes to the root of the proceedings.
10. This lack of candor and failure to engage with the Court in good faith undermines any basis for the exercise of discretion under Section 96. The provision is not intended to shield parties who are indifferent to procedural compliance or who seek to circumvent the foundational requirements of instituting a suit. Payment of filing fees is a jurisdictional prerequisite; without it, there is no properly instituted suit upon which the application for injunctive relief can stand.
Disposition
11. In light of the foregoing, I find merit in the preliminary objection. The application dated 20th March 2025 is hereby struck out for being incompetent. Although the respondent has succeeded in the objection, I am of the view that the applicant has already borne the consequence of the striking out. Accordingly, I make no order as to costs.
'