1. Before this Court for determination is the Defendant's Preliminary Objection dated 19th September 2025 together with the Notice of Motion of even date seeking, inter alia, that this suit be struck out on grounds that it offends the doctrine of exhaustion, is sub judice and that this Court lacks territorial jurisdiction to entertain it.
2. The application is supported by the affidavit of Mary Mawia Mulyungi sworn on 19th September 2025. The Plaintiffs oppose the objection and application through their pleadings and written submissions.
3. I have carefully considered the Preliminary Objection, the Notice of Motion, the affidavits on record and the rival submissions filed by the parties.
4. The Plaintiffs instituted the present suit on 3rd September 2025 together with an application seeking injunctive reliefs against the Defendant for alleged infringement of Industrial Design Registration Numbers 1794 and 1795 relating to the packaging and appearance of their sanitary pad product known as "MY GIRL".
5. The Plaintiffs contend that they are the registered proprietors of the said industrial designs and that the Defendant has introduced into the market a competing sanitary pad product which packaging substantially imitates their registered designs.
6. In response, the Defendant filed the present Preliminary Objection and Notice of Motion contending that the dispute falls within the jurisdiction of the Industrial Property Tribunal, that there exist previously instituted proceedings before the Tribunal and the High Court at Nairobi touching on the same subject matter, and that this Court lacks territorial jurisdiction to hear and determine the dispute.
7. Having considered the pleadings and submissions, the following issues arise for determination:
i. Whether this suit is barred by the doctrine of exhaustion.
ii. Whether the suit is sub judice within the meaning of section 6 of the Civil Procedure Act.
iii. Whether this Court lacks territorial jurisdiction to hear and determine the suit.
iv. Whether the Defendant's Preliminary Objection and Notice of Motion are merited.
Analysis and Determination
Whether the suit is barred by the doctrine of exhaustion
8. The Defendant argues that the dispute concerns industrial designs and therefore falls within the jurisdiction of the Industrial Property Tribunal. It was submitted that the Defendant had already instituted Industrial Property Tribunal Case No. E002 of 2025 seeking revocation or invalidation of Industrial Design Registration Numbers 1794 and 1795.
9. The doctrine of exhaustion is now well settled. In Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), the Court held that where a statute has provided a dispute resolution mechanism, that mechanism ought to be followed before resort is made to the courts. The principle was reaffirmed by the Court of Appeal in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) where it was held that;
“The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
10. The question, however, is whether the present dispute is one that exclusively falls within the mandate of the Tribunal. The material placed before Court shows that the proceedings before the Tribunal seek invalidation and revocation of the Plaintiffs' industrial design registrations. The present suit, on the other hand, seeks declarations of infringement, injunctions, delivery up of offending products, damages and accounts of profits arising from the alleged infringement of the registered industrial designs.
11. It is therefore evident that the causes of action and reliefs sought are not identical.
12. More importantly, the objection raised by the Defendant would require the Court to interrogate the nature of the Tribunal proceedings, the scope of the Tribunal's mandate and the exact reliefs available thereunder. Such an inquiry necessarily involves examination of facts and matters beyond the pleadings.
13. The law on preliminary objections was authoritatively stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA held that a preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the opposite party are correct and which, if successful, may dispose of the suit.
14. The exhaustion argument raised by the Defendant cannot be determined without examining contested facts and the nature of the proceedings before the Tribunal. It therefore falls outside the scope of a proper preliminary objection. I am consequently not persuaded that the doctrine of exhaustion has been established so as to oust this Court's jurisdiction at this stage.
Whether the suit is sub judice
15. The Defendant further contends that the present suit is sub judice in light of:
a. I ndustrial Property Tribunal Case No. E002 of 2025; and
b. Milimani HCCOMM E322 of 202
16. The doctrine of sub judice is codified in section 6 of the Civil Procedure Act which provides:
"No court shall proceed with the trial of any suit or proceeding 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 claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed."
17. For the doctrine to apply, it must be demonstrated that:
i. There exists a previously instituted suit.
ii. The parties are the same or litigating under the same title.
iii. The matter in issue is directly and substantially the same.
iv. The earlier forum is competent to grant the relief sought.
18. The existence of the Tribunal proceedings and the Milimani suit is not disputed. The question is whether the issues are directly and substantially the same.
19. From the material before Court, the Tribunal proceedings seek revocation and invalidation of Industrial Design Registration Numbers 1794 and 1795. The Milimani suit concerns allegations relating to trademark infringement, passing off and use of the Defendant's "SOFTCARE" mark and associated packaging. The present suit concerns infringement of the Plaintiffs' registered industrial designs and seeks reliefs flowing from such infringement.
20. While the disputes arise from the parties' commercial rivalry in the sanitary products market, the causes of action, statutory rights invoked and reliefs sought are not identical. In Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others [2019] KECA 76 (KLR), the court held that;
“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.”
21. The Defendant has not demonstrated that the issues before this Court are directly and substantially identical to those pending before either the Tribunal or the High Court at Nairobi.
22. The plea of sub judice therefore fails.
Whether this Court lacks territorial jurisdiction
23. The Defendant argues that by virtue of section 15 of the Civil Procedure Act, the suit ought to have been filed in Nairobi where the Defendant carries on business. The Plaintiffs, however, maintain that they have operational facilities and business activities within Mombasa and that the cause of action has a sufficient nexus with this jurisdiction.
24. Section 15 of the Civil Procedure Act deals with the place of suing and is primarily concerned with convenience and venue. Whether the cause of action arose wholly or partly within Mombasa and whether the parties carry on business within this jurisdiction are matters of fact requiring evidential interrogation.
25. The Court cannot determine such contested factual matters through a preliminary objection.
26. Further, territorial jurisdiction under section 15 of the Civil Procedure Act is distinguishable from substantive jurisdiction. As was observed in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything. However, the issue raised before me is not one of substantive jurisdiction but of venue.
27. The objection would require ascertainment of disputed facts and therefore falls outside the parameters of a proper preliminary objection as contemplated in Mukisa Biscuit.
28. I therefore find no merit in the Defendant's challenge to the Court's territorial jurisdiction at this stage.
29. Having considered the material placed before Court, I find as follows:
a. T he Defendant has not established that the doctrine of exhaustion ousts the jurisdiction of this Court in the circumstances of this case.
b. The Defendant has not demonstrated that the present suit is sub judice within the meaning of section 6 of the Civil Procedure Act.
c. The challenge to territorial jurisdiction raises contested factual issues which cannot properly be determined through a preliminary objection.
d. The Preliminary Objection does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
e. The Defendant's Notice of Motion dated 19th September 2025 is equally devoid of merit
30. Accordingly, the Court makes the following orders:
a. The Defendant's Preliminary Objection dated 19th September 2025 is hereby dismissed.
b. The Defendant's Notice of Motion dated 19th September 2025 is hereby dismissed.
c. The costs of the Preliminary Objection and the Notice of Motion are awarded to the Plaintiffs
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
In the presence of: -
Mr. Kaingu Advocate for the Plaintiff
Mr. Wesonga Advocate for Defendant
Ms. Salwa, Court Assistant
2. The application is supported by the affidavit of Mary Mawia Mulyungi sworn on 19th September 2025. The Plaintiffs oppose the objection and application through their pleadings and written submissions.
3. I have carefully considered the Preliminary Objection, the Notice of Motion, the affidavits on record and the rival submissions filed by the parties.
4. The Plaintiffs instituted the present suit on 3rd September 2025 together with an application seeking injunctive reliefs against the Defendant for alleged infringement of Industrial Design Registration Numbers 1794 and 1795 relating to the packaging and appearance of their sanitary pad product known as "MY GIRL".
5. The Plaintiffs contend that they are the registered proprietors of the said industrial designs and that the Defendant has introduced into the market a competing sanitary pad product which packaging substantially imitates their registered designs.
6. In response, the Defendant filed the present Preliminary Objection and Notice of Motion contending that the dispute falls within the jurisdiction of the Industrial Property Tribunal, that there exist previously instituted proceedings before the Tribunal and the High Court at Nairobi touching on the same subject matter, and that this Court lacks territorial jurisdiction to hear and determine the dispute.
7. Having considered the pleadings and submissions, the following issues arise for determination:
i. Whether this suit is barred by the doctrine of exhaustion.
ii. Whether the suit is sub judice within the meaning of section 6 of the Civil Procedure Act.
iii. Whether this Court lacks territorial jurisdiction to hear and determine the suit.
iv. Whether the Defendant's Preliminary Objection and Notice of Motion are merited.
Analysis and Determination
Whether the suit is barred by the doctrine of exhaustion
8. The Defendant argues that the dispute concerns industrial designs and therefore falls within the jurisdiction of the Industrial Property Tribunal. It was submitted that the Defendant had already instituted Industrial Property Tribunal Case No. E002 of 2025 seeking revocation or invalidation of Industrial Design Registration Numbers 1794 and 1795.
9. The doctrine of exhaustion is now well settled. In Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), the Court held that where a statute has provided a dispute resolution mechanism, that mechanism ought to be followed before resort is made to the courts. The principle was reaffirmed by the Court of Appeal in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) where it was held that;
“The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
10. The question, however, is whether the present dispute is one that exclusively falls within the mandate of the Tribunal. The material placed before Court shows that the proceedings before the Tribunal seek invalidation and revocation of the Plaintiffs' industrial design registrations. The present suit, on the other hand, seeks declarations of infringement, injunctions, delivery up of offending products, damages and accounts of profits arising from the alleged infringement of the registered industrial designs.
11. It is therefore evident that the causes of action and reliefs sought are not identical.
12. More importantly, the objection raised by the Defendant would require the Court to interrogate the nature of the Tribunal proceedings, the scope of the Tribunal's mandate and the exact reliefs available thereunder. Such an inquiry necessarily involves examination of facts and matters beyond the pleadings.
13. The law on preliminary objections was authoritatively stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA held that a preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the opposite party are correct and which, if successful, may dispose of the suit.
14. The exhaustion argument raised by the Defendant cannot be determined without examining contested facts and the nature of the proceedings before the Tribunal. It therefore falls outside the scope of a proper preliminary objection. I am consequently not persuaded that the doctrine of exhaustion has been established so as to oust this Court's jurisdiction at this stage.
Whether the suit is sub judice
15. The Defendant further contends that the present suit is sub judice in light of:
a. I ndustrial Property Tribunal Case No. E002 of 2025; and
b. Milimani HCCOMM E322 of 202
16. The doctrine of sub judice is codified in section 6 of the Civil Procedure Act which provides:
"No court shall proceed with the trial of any suit or proceeding 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 claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed."
17. For the doctrine to apply, it must be demonstrated that:
i. There exists a previously instituted suit.
ii. The parties are the same or litigating under the same title.
iii. The matter in issue is directly and substantially the same.
iv. The earlier forum is competent to grant the relief sought.
18. The existence of the Tribunal proceedings and the Milimani suit is not disputed. The question is whether the issues are directly and substantially the same.
19. From the material before Court, the Tribunal proceedings seek revocation and invalidation of Industrial Design Registration Numbers 1794 and 1795. The Milimani suit concerns allegations relating to trademark infringement, passing off and use of the Defendant's "SOFTCARE" mark and associated packaging. The present suit concerns infringement of the Plaintiffs' registered industrial designs and seeks reliefs flowing from such infringement.
20. While the disputes arise from the parties' commercial rivalry in the sanitary products market, the causes of action, statutory rights invoked and reliefs sought are not identical. In Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others [2019] KECA 76 (KLR), the court held that;
“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.”
21. The Defendant has not demonstrated that the issues before this Court are directly and substantially identical to those pending before either the Tribunal or the High Court at Nairobi.
22. The plea of sub judice therefore fails.
Whether this Court lacks territorial jurisdiction
23. The Defendant argues that by virtue of section 15 of the Civil Procedure Act, the suit ought to have been filed in Nairobi where the Defendant carries on business. The Plaintiffs, however, maintain that they have operational facilities and business activities within Mombasa and that the cause of action has a sufficient nexus with this jurisdiction.
24. Section 15 of the Civil Procedure Act deals with the place of suing and is primarily concerned with convenience and venue. Whether the cause of action arose wholly or partly within Mombasa and whether the parties carry on business within this jurisdiction are matters of fact requiring evidential interrogation.
25. The Court cannot determine such contested factual matters through a preliminary objection.
26. Further, territorial jurisdiction under section 15 of the Civil Procedure Act is distinguishable from substantive jurisdiction. As was observed in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything. However, the issue raised before me is not one of substantive jurisdiction but of venue.
27. The objection would require ascertainment of disputed facts and therefore falls outside the parameters of a proper preliminary objection as contemplated in Mukisa Biscuit.
28. I therefore find no merit in the Defendant's challenge to the Court's territorial jurisdiction at this stage.
29. Having considered the material placed before Court, I find as follows:
a. T he Defendant has not established that the doctrine of exhaustion ousts the jurisdiction of this Court in the circumstances of this case.
b. The Defendant has not demonstrated that the present suit is sub judice within the meaning of section 6 of the Civil Procedure Act.
c. The challenge to territorial jurisdiction raises contested factual issues which cannot properly be determined through a preliminary objection.
d. The Preliminary Objection does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
e. The Defendant's Notice of Motion dated 19th September 2025 is equally devoid of merit
30. Accordingly, the Court makes the following orders:
a. The Defendant's Preliminary Objection dated 19th September 2025 is hereby dismissed.
b. The Defendant's Notice of Motion dated 19th September 2025 is hereby dismissed.
c. The costs of the Preliminary Objection and the Notice of Motion are awarded to the Plaintiffs
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
In the presence of: -
Mr. Kaingu Advocate for the Plaintiff
Mr. Wesonga Advocate for Defendant
Ms. Salwa, Court Assistant