1. This ruling is in respect of the Respondent’s /Defendants Preliminary Objection dated 7th October 2025 on the following grounds;
a. Jurisdiction/Functus Officio: This Honourable Court became functus officio upon delivery of judgment on 1st July 2024 and lacks jurisdiction to re-open or vary the substance of the judgment/decree by adding parties or recasting rights and obligations post-judgment. Jurisdiction is everything and must be determined at the outset (Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR); once a court has pronounced itself, it cannot sit on appeal over its own decision (Telkom Kenya Ltd v John Ochanda [2014] eKLR).
b. Wrong Procedural Vehicle: Section 99 of the Civil Procedure Act is confined to clerical/arithmetical errors or accidental slips. The motion seeks substantive alteration of the decree—including the addition/description of parties—which is outside section 99 and, if at all, a matter for appeal. See Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR.
c. Review Threshold Not Invoked/Met: To the extent the motion purports to be a review, the Applicants have neither invoked nor satisfied Section 80 CPA and Order 45 Rule 1 (discovery of new evidence; error apparent; or other sufficient reason; and without unreasonable delay). These are matters of strict law ascertainable on the face of the record and render the motion incompetent.
d. Sub judice / Parallel Appellate Process: There is a pending application for extension of time to appeal before the Court of Appeal in COACAPPL/E013/2025 – Saidi Juma Ngolo Baya v Husseinali M. Khaki & Mohsin A. Khaki & Another – listed for ruling on 17th October 2025. Proceeding on the impugned motion risks conflicting outcomes and offends section 6 of the Civil Procedure Act (sub judice) and the orderly hierarchy of courts.
e. Abuse of Process: The motion is a collateral attack on a final judgment, contrary to the principles in Uhuru Highway Development Ltd v CBK & 2 Others [1996] eKLR and Henderson v Henderson (1843) 3 Hare 100 (persuasive). This Court should not permit parties to achieve via "correction" or "review" what can only be pursued on appeal.
f. Nature of Objection: The foregoing are pure points of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and are capable of disposing of the motion without resort to contested evidence.
2. The matter came up for hearing on 9th December 2025, and the court directed parties to file submissions
Respondent’s submissions
3. Counsel for the respondent submits that the Preliminary Objection raises pure points of law and the same goes to the root of the Applicants Notice of Motion dated 13th March 2025 and is capable of disposing the motion in limine. He relies on the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors in supporting the assertion.
4. According to the Respondent once judgment was delivered, the court became functus officio save for limited statutory exceptions. He submits that the Applicants seek substantive alterations post judgment which fall under the appellate terrain and not review or correction.
5. The Respondents counsel further submits that Section 99 of the Civil Procedure Act permits correction of clerical mistake, arithmetical errors or accidental slips, he is of the view that the Applicants motion seeks substantive variation and addition of parties which is not permitted by section 99 of Civil Procedure Act. In so submitting counsel relies on the case of Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank [2014] eKLR.
6. Additionally, the Respondent submits that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, review is a remedy where new evidence is discovered, error apparent on face of Record or other sufficient reason and that is not the case in the Applicants Notice of Motion. Counsel submits that a record of Appeal has been filed and Appellate jurisdiction has been invoked, consequently the court is barred from proceeding with the matter in an issue that is directly and substantially an issue in a previously instituted proceeding by dint of Section 6 of the Civil Procedure Act.
7. Finally, counsel submits that the Application is an abuse of the court process and that the appellants cannot pursue an appeal and simultaneously invite the court to reconfigure its decree.
Applicant’s submissions
8. The Applicants submits that the issues raised by the Respondent are not pure points of law and that the facts raised must be proved by an affidavit of facts. The Respondent relies on the case of Mombasa ELC No. 136 of 2021 Zipporah Njoki Kangara V Rock & Pure Limited & 3 Others, and Muranga ELC No. 15 of 2021 Margaret N. Gitau v Julius Mburu Gitau & 2 Others in submitting that a preliminary objection should be based on a pure point of law.
9. The Applicant further submits that this court has jurisdiction to determine the Application for review before it. According to the Applicant the Motion before court seeks review of the courts decree since this matter was consolidated with E.L.C No. 63 of 2020 whose applicants were twenty-six (26) in number and nothing more, the only issue for correction in the judgment is the number of parties who were in the consolidated matter.
10. It is the Applicants submission that the Preliminary Objection falls short of the requirements of such an application and urges the court to dismiss the same with costs.
Analysis and determination
11. This court has considered the preliminary objection and is of the view that the main issue for determination is whether the preliminary objection is merited.
12. In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:A preliminary objection is in the nature of what used to be a demurrer. 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 is the exercise of judicial discretion.” “So far as I am aware, 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 on 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.”
13. In the case of George Oraro v Barak Eston Mbaja (Civil Suit 85 of 1992) [2005] KEHC 731 (KLR) the court held as follows:“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”.
14. The Respondent has raised the issue of jurisdiction in the Preliminary Objection. Jurisdiction is everything. Without it, a court must down its tools. This cardinal principle was stated in Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi JA observed that a court without jurisdiction cannot make one more step.
15. It is trite that the issue of jurisdiction can be raised by way of preliminary objection, however, the court notes that the instant application seeks the inclusion of additional defendants in the decree to reflect the consolidation of this matter with Suit No. E063 of 2020 (O.S.). It is the Courts view that the relief sought falls within the ambit of a review on account of an alleged error apparent on the face of the record which fall squarely within the jurisdiction of this court. Therefore ground 1,2 and 3 of the Preliminary Objection ultimately fail.
16. The Preliminary Objection is based on a plea of res sub judice. The doctrine is provided for in section 6 of the Civil Procedure Act which states that: “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 or any of them 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. In order for the court to determine whether the parties, issues and subject matter in the former suit were the same as the present suit and whether there was a final determination by a court of competent jurisdiction, the court will need to see the pleadings, proceedings and judgement/decision in the former suit(s). It is not procedurally possible to exhibit these documents through a Notice of preliminary objection as in the present case.
18. Equally, the ground alleging that the application is an attack on the final judgment is an issue of fact since the court is invited to examine the judgment and the relief sought in the application to ascertain whether indeed the application is an attack on the final judgment. Consequently, the same is unsuitable for determination by way of preliminary objection.
19. The upshot of the foregoing is that the grounds as raised by the Respondents do not meet the threshold of a preliminary objection. The Preliminary Objection dated 7th October 2025 is without merit and is dismissed with costs. Orders accordingly.
a. Jurisdiction/Functus Officio: This Honourable Court became functus officio upon delivery of judgment on 1st July 2024 and lacks jurisdiction to re-open or vary the substance of the judgment/decree by adding parties or recasting rights and obligations post-judgment. Jurisdiction is everything and must be determined at the outset (Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR); once a court has pronounced itself, it cannot sit on appeal over its own decision (Telkom Kenya Ltd v John Ochanda [2014] eKLR).
b. Wrong Procedural Vehicle: Section 99 of the Civil Procedure Act is confined to clerical/arithmetical errors or accidental slips. The motion seeks substantive alteration of the decree—including the addition/description of parties—which is outside section 99 and, if at all, a matter for appeal. See Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR.
c. Review Threshold Not Invoked/Met: To the extent the motion purports to be a review, the Applicants have neither invoked nor satisfied Section 80 CPA and Order 45 Rule 1 (discovery of new evidence; error apparent; or other sufficient reason; and without unreasonable delay). These are matters of strict law ascertainable on the face of the record and render the motion incompetent.
d. Sub judice / Parallel Appellate Process: There is a pending application for extension of time to appeal before the Court of Appeal in COACAPPL/E013/2025 – Saidi Juma Ngolo Baya v Husseinali M. Khaki & Mohsin A. Khaki & Another – listed for ruling on 17th October 2025. Proceeding on the impugned motion risks conflicting outcomes and offends section 6 of the Civil Procedure Act (sub judice) and the orderly hierarchy of courts.
e. Abuse of Process: The motion is a collateral attack on a final judgment, contrary to the principles in Uhuru Highway Development Ltd v CBK & 2 Others [1996] eKLR and Henderson v Henderson (1843) 3 Hare 100 (persuasive). This Court should not permit parties to achieve via "correction" or "review" what can only be pursued on appeal.
f. Nature of Objection: The foregoing are pure points of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and are capable of disposing of the motion without resort to contested evidence.
2. The matter came up for hearing on 9th December 2025, and the court directed parties to file submissions
Respondent’s submissions
3. Counsel for the respondent submits that the Preliminary Objection raises pure points of law and the same goes to the root of the Applicants Notice of Motion dated 13th March 2025 and is capable of disposing the motion in limine. He relies on the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors in supporting the assertion.
4. According to the Respondent once judgment was delivered, the court became functus officio save for limited statutory exceptions. He submits that the Applicants seek substantive alterations post judgment which fall under the appellate terrain and not review or correction.
5. The Respondents counsel further submits that Section 99 of the Civil Procedure Act permits correction of clerical mistake, arithmetical errors or accidental slips, he is of the view that the Applicants motion seeks substantive variation and addition of parties which is not permitted by section 99 of Civil Procedure Act. In so submitting counsel relies on the case of Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank [2014] eKLR.
6. Additionally, the Respondent submits that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, review is a remedy where new evidence is discovered, error apparent on face of Record or other sufficient reason and that is not the case in the Applicants Notice of Motion. Counsel submits that a record of Appeal has been filed and Appellate jurisdiction has been invoked, consequently the court is barred from proceeding with the matter in an issue that is directly and substantially an issue in a previously instituted proceeding by dint of Section 6 of the Civil Procedure Act.
7. Finally, counsel submits that the Application is an abuse of the court process and that the appellants cannot pursue an appeal and simultaneously invite the court to reconfigure its decree.
Applicant’s submissions
8. The Applicants submits that the issues raised by the Respondent are not pure points of law and that the facts raised must be proved by an affidavit of facts. The Respondent relies on the case of Mombasa ELC No. 136 of 2021 Zipporah Njoki Kangara V Rock & Pure Limited & 3 Others, and Muranga ELC No. 15 of 2021 Margaret N. Gitau v Julius Mburu Gitau & 2 Others in submitting that a preliminary objection should be based on a pure point of law.
9. The Applicant further submits that this court has jurisdiction to determine the Application for review before it. According to the Applicant the Motion before court seeks review of the courts decree since this matter was consolidated with E.L.C No. 63 of 2020 whose applicants were twenty-six (26) in number and nothing more, the only issue for correction in the judgment is the number of parties who were in the consolidated matter.
10. It is the Applicants submission that the Preliminary Objection falls short of the requirements of such an application and urges the court to dismiss the same with costs.
Analysis and determination
11. This court has considered the preliminary objection and is of the view that the main issue for determination is whether the preliminary objection is merited.
12. In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:A preliminary objection is in the nature of what used to be a demurrer. 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 is the exercise of judicial discretion.” “So far as I am aware, 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 on 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.”
13. In the case of George Oraro v Barak Eston Mbaja (Civil Suit 85 of 1992) [2005] KEHC 731 (KLR) the court held as follows:“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”.
14. The Respondent has raised the issue of jurisdiction in the Preliminary Objection. Jurisdiction is everything. Without it, a court must down its tools. This cardinal principle was stated in Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi JA observed that a court without jurisdiction cannot make one more step.
15. It is trite that the issue of jurisdiction can be raised by way of preliminary objection, however, the court notes that the instant application seeks the inclusion of additional defendants in the decree to reflect the consolidation of this matter with Suit No. E063 of 2020 (O.S.). It is the Courts view that the relief sought falls within the ambit of a review on account of an alleged error apparent on the face of the record which fall squarely within the jurisdiction of this court. Therefore ground 1,2 and 3 of the Preliminary Objection ultimately fail.
16. The Preliminary Objection is based on a plea of res sub judice. The doctrine is provided for in section 6 of the Civil Procedure Act which states that: “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 or any of them 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. In order for the court to determine whether the parties, issues and subject matter in the former suit were the same as the present suit and whether there was a final determination by a court of competent jurisdiction, the court will need to see the pleadings, proceedings and judgement/decision in the former suit(s). It is not procedurally possible to exhibit these documents through a Notice of preliminary objection as in the present case.
18. Equally, the ground alleging that the application is an attack on the final judgment is an issue of fact since the court is invited to examine the judgment and the relief sought in the application to ascertain whether indeed the application is an attack on the final judgment. Consequently, the same is unsuitable for determination by way of preliminary objection.
19. The upshot of the foregoing is that the grounds as raised by the Respondents do not meet the threshold of a preliminary objection. The Preliminary Objection dated 7th October 2025 is without merit and is dismissed with costs. Orders accordingly.