[1] The Notice of Motion dated 21 st July 2025 was filed by the ex parte applicants, Maurice Otieno Ofwayo and Celine Akinyi Adhola (hereinafter, “the applicants”) pursuant to Section 21(5) of the Government Proceedings Act, Chapter 40 of the Laws of Kenya, Order 29 Rule 3 and Order 53 Rule 3 of the Civil Procedure Rules, 2010 for the following orders:
[a] An order of Mandamus directed at the County Executive Committee Member for Finance at the County Government of Homa Bay compelling him to pay the decretal amount together with costs and interest arising from Homa Bay Chief Magistrate’s Civil Case No. 58 of 2017 as certified in the Certificate of Order of Judgment and Costs against the Government amounting to Kshs. 1,317,994.20 as at 15 th August 2025.
[b] An order that the costs of the application be awarded to the ex parte applicants.
[2] The application was premised on the grounds that judgment was delivered in Homa Bay Chief Magistrate’s Civil Suit No. 58 of 2017 on the 22 nd September 2021 in favour of the ex parte applicants (hereinafter, “the applicants”) as against the respondents for the sum of Kshs. 805,060/=, together with costs and interest. The applicants explained that they duly served on the respondents the Decree, Certificate of Costs as well as Certificates of Order against the Government, both for the Judgment and Costs, pursuant to Section 21(1) as read with Section 21(5) of the Government Proceedings Act.
[3] It was therefore the contention of the applicants that since then the respondent had failed to perform his duties as the accounting officer and head of the executive committee by neglecting to pay the decretal sum, the only option available is to apply for an Order of Mandamus. They pointed out that the respondent has neither appealed the judgment nor obtained an order of stay of execution; and therefore their failure to pay is deliberate and amounts to abuse of the court process. They posited that, unless compelled to pay by way of an Order of Mandamus, the respondent intends to continue in their course of blatant defiance of the orders of the lower court.
[4] The application was supported by the Statutory Statement dated 14 th July 2025 and the Verifying Affidavit sworn on 14 th July 2025 by Maurice Otieno Ofwayo . The applicants annexed to that affidavit copies of the Judgment, Decree and Certificate of Costs as well as Certificate of Order of Judgment and Costs against the Government, among other documents and prayed their application be allowed with costs.
[5] In response to the application, the respondent filed a Notice of Preliminary Objection dated 10 th February 2026 contending that:
[ a] Th e facts giving rise to the aforesaid application are the same facts relied on in HCJR No. E006 of 2023 and HCJR MSC. No. E005 of 2023 .
[b] Th e orders sought before this Court in the application dated 14 th July, 2025 are the same orders that were sought in HCJR No. E006 of 2023 and HCJR MSC. No. E005 of 2023 .
[c] This Court had pronounced itself in both HCJR No. E006 of 2023 and HCJR MSC. No. E005 OF 2023 .
[d] This matter is therefore res judicata .
[e] This Court is also Functus Officio over the matter before it.
[6] In support of the Preliminary Objection, the respondent filed written submissions dated 23 rd February 2026 proposing the following issues for determination:
[a] Whether the matter before the Court is res judicata ?
[b] Whether the Honourable court is functus officio ? and
[c] Who should bear costs?
[7] The respondent relied on Section 7 of the Civil Procedure Act (Cap 21) , and the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, In the respondent’s submission, the facts giving rise to the present Judicial Review Application are the same facts that formed the basis of HCJR No. E006 of 2023 , and HCJR Misc. No. E005 of 2023 , wherein the Orders sought in the Application dated 14 th July 2025 are identical to the two aforesaid Judicial Review proceedings, namely an Order of Mandamus to enforce payment by the County Government of Homa Bay in respect of the decree passed in Homa Bay Chief Magistrate’s Court Civil Suit No. 58 of 2017.
[8] The respondent submitted that what the applicants seek to do herein is to re-litigate the same issues that have already been determined finally. Reliance was based on E.T. v Attorney General & another [2012] eKLR for the proposition that res judicata applies not only to issues actually determined but also to issues that ought to have been raised in the previous proceedings. Accordingly, the posturing of the respondent was that the instant application is an abuse of the process of the court.
[9] It was further the submission of the respondent that the Court is functus officio . In this regard, the respondent relied on Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR, in which the Court of Appeal held:
“A Court becomes functus officio when it has performed all its duties in a particular case and exhausted its jurisdiction”
[10] In the respondent’s view, the Court has already rendered itself in HCJR No. E006 of 2023 and HCJR Misc. No. E005 of 2023 , thereby exhausting its jurisdiction over those matters. They submitted that the applicants cannot, through a fresh application, re-open litigation already concluded. The respondent postulated that, if the applicants were dissatisfied with the decision of the Court in those previous matters, their recourse lay in appeal or review within the confines of Order 45 of the Civil Procedure Rules.
[11] On costs, the respondent restated the law, namely, that costs are awarded at the discretion of the Court and ordinarily follows the event unless the Court, for good reason, otherwise orders. The case of D G M v E W G [2021] eKLR, was cited in urging the Court to find that it was ill-advised for the applicants to file this suit; and therefore they ought to bear the costs of their misadventure.
[12] In sum, the respondent urged the Court to uphold the Preliminary Objection and dismiss or strike out the Notice of Motion dated 14 th July 2025 with costs to the respondent.
[13] The applicants were opposed to the respondent’s Preliminary Objection and relied on their written submissions dated 20 th February 2026. In their view, the only issue for determination is whether the threshold of law for allowing and or granting a preliminary objection has been met. Accordingly, the applicants submitted that the vague manner in which the Preliminary Objection is formed is in breach of the “No surprise Rule” of procedure as provided for in Order 2 rule 4(1) of the Civil Procedure Rules.
[14] The applicants relied on the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1960] and Oraro v Mbaja [2005] eKLR among others to support their argument that it was improper for the respondents to expect the Court to call for and peruse the previous decisions before making its decision on the Preliminary Objection and therefore the issue of res judicata was improperly raised by way of a preliminary objection. They urged the Court to dismissed the Preliminary Objection dated 10 th February 2026 with costs.
[15] What amounts to a preliminary objection was aptly captured in Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors [1969] EA 696 thus:
“…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 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...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…”
[16] Similarly, in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR the Supreme Court emphasized the point that: -
“...a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record…”
[17] I agree entirely with the applicants that the issues raised by the respondent are not proper issues for consideration by way of a preliminary objection. The respondent made reference to previous suits which the Court would have to call for and peruse to enable it determine whether or not the instant suit is res judicata ; or whether the Court is functus officio.
[18] It is now trite that any preliminary point that is based on evidence cannot be a valid preliminary objection. In Oraro v Mbaja [2005] 1 KLR 141, Hon. Ojwang, J. (as he then was) held that:
"...A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[19] It is therefore my finding that the respondents’ Preliminary Objection was improperly taken and must be deprecated. In Mukisa Biscuits Manufacturing case Sir Charles Newbold, P. emphasized the point that:
“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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
[20] In the light of the foregoing, I find no merit in the respondents’ Preliminary Objection dated 10 th February 2026. The same is hereby dismissed with an order that the costs thereof be borne by the respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17 TH DAY OF APRIL 2026
[a] An order of Mandamus directed at the County Executive Committee Member for Finance at the County Government of Homa Bay compelling him to pay the decretal amount together with costs and interest arising from Homa Bay Chief Magistrate’s Civil Case No. 58 of 2017 as certified in the Certificate of Order of Judgment and Costs against the Government amounting to Kshs. 1,317,994.20 as at 15 th August 2025.
[b] An order that the costs of the application be awarded to the ex parte applicants.
[2] The application was premised on the grounds that judgment was delivered in Homa Bay Chief Magistrate’s Civil Suit No. 58 of 2017 on the 22 nd September 2021 in favour of the ex parte applicants (hereinafter, “the applicants”) as against the respondents for the sum of Kshs. 805,060/=, together with costs and interest. The applicants explained that they duly served on the respondents the Decree, Certificate of Costs as well as Certificates of Order against the Government, both for the Judgment and Costs, pursuant to Section 21(1) as read with Section 21(5) of the Government Proceedings Act.
[3] It was therefore the contention of the applicants that since then the respondent had failed to perform his duties as the accounting officer and head of the executive committee by neglecting to pay the decretal sum, the only option available is to apply for an Order of Mandamus. They pointed out that the respondent has neither appealed the judgment nor obtained an order of stay of execution; and therefore their failure to pay is deliberate and amounts to abuse of the court process. They posited that, unless compelled to pay by way of an Order of Mandamus, the respondent intends to continue in their course of blatant defiance of the orders of the lower court.
[4] The application was supported by the Statutory Statement dated 14 th July 2025 and the Verifying Affidavit sworn on 14 th July 2025 by Maurice Otieno Ofwayo . The applicants annexed to that affidavit copies of the Judgment, Decree and Certificate of Costs as well as Certificate of Order of Judgment and Costs against the Government, among other documents and prayed their application be allowed with costs.
[5] In response to the application, the respondent filed a Notice of Preliminary Objection dated 10 th February 2026 contending that:
[ a] Th e facts giving rise to the aforesaid application are the same facts relied on in HCJR No. E006 of 2023 and HCJR MSC. No. E005 of 2023 .
[b] Th e orders sought before this Court in the application dated 14 th July, 2025 are the same orders that were sought in HCJR No. E006 of 2023 and HCJR MSC. No. E005 of 2023 .
[c] This Court had pronounced itself in both HCJR No. E006 of 2023 and HCJR MSC. No. E005 OF 2023 .
[d] This matter is therefore res judicata .
[e] This Court is also Functus Officio over the matter before it.
[6] In support of the Preliminary Objection, the respondent filed written submissions dated 23 rd February 2026 proposing the following issues for determination:
[a] Whether the matter before the Court is res judicata ?
[b] Whether the Honourable court is functus officio ? and
[c] Who should bear costs?
[7] The respondent relied on Section 7 of the Civil Procedure Act (Cap 21) , and the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, In the respondent’s submission, the facts giving rise to the present Judicial Review Application are the same facts that formed the basis of HCJR No. E006 of 2023 , and HCJR Misc. No. E005 of 2023 , wherein the Orders sought in the Application dated 14 th July 2025 are identical to the two aforesaid Judicial Review proceedings, namely an Order of Mandamus to enforce payment by the County Government of Homa Bay in respect of the decree passed in Homa Bay Chief Magistrate’s Court Civil Suit No. 58 of 2017.
[8] The respondent submitted that what the applicants seek to do herein is to re-litigate the same issues that have already been determined finally. Reliance was based on E.T. v Attorney General & another [2012] eKLR for the proposition that res judicata applies not only to issues actually determined but also to issues that ought to have been raised in the previous proceedings. Accordingly, the posturing of the respondent was that the instant application is an abuse of the process of the court.
[9] It was further the submission of the respondent that the Court is functus officio . In this regard, the respondent relied on Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR, in which the Court of Appeal held:
“A Court becomes functus officio when it has performed all its duties in a particular case and exhausted its jurisdiction”
[10] In the respondent’s view, the Court has already rendered itself in HCJR No. E006 of 2023 and HCJR Misc. No. E005 of 2023 , thereby exhausting its jurisdiction over those matters. They submitted that the applicants cannot, through a fresh application, re-open litigation already concluded. The respondent postulated that, if the applicants were dissatisfied with the decision of the Court in those previous matters, their recourse lay in appeal or review within the confines of Order 45 of the Civil Procedure Rules.
[11] On costs, the respondent restated the law, namely, that costs are awarded at the discretion of the Court and ordinarily follows the event unless the Court, for good reason, otherwise orders. The case of D G M v E W G [2021] eKLR, was cited in urging the Court to find that it was ill-advised for the applicants to file this suit; and therefore they ought to bear the costs of their misadventure.
[12] In sum, the respondent urged the Court to uphold the Preliminary Objection and dismiss or strike out the Notice of Motion dated 14 th July 2025 with costs to the respondent.
[13] The applicants were opposed to the respondent’s Preliminary Objection and relied on their written submissions dated 20 th February 2026. In their view, the only issue for determination is whether the threshold of law for allowing and or granting a preliminary objection has been met. Accordingly, the applicants submitted that the vague manner in which the Preliminary Objection is formed is in breach of the “No surprise Rule” of procedure as provided for in Order 2 rule 4(1) of the Civil Procedure Rules.
[14] The applicants relied on the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1960] and Oraro v Mbaja [2005] eKLR among others to support their argument that it was improper for the respondents to expect the Court to call for and peruse the previous decisions before making its decision on the Preliminary Objection and therefore the issue of res judicata was improperly raised by way of a preliminary objection. They urged the Court to dismissed the Preliminary Objection dated 10 th February 2026 with costs.
[15] What amounts to a preliminary objection was aptly captured in Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors [1969] EA 696 thus:
“…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 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...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…”
[16] Similarly, in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR the Supreme Court emphasized the point that: -
“...a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record…”
[17] I agree entirely with the applicants that the issues raised by the respondent are not proper issues for consideration by way of a preliminary objection. The respondent made reference to previous suits which the Court would have to call for and peruse to enable it determine whether or not the instant suit is res judicata ; or whether the Court is functus officio.
[18] It is now trite that any preliminary point that is based on evidence cannot be a valid preliminary objection. In Oraro v Mbaja [2005] 1 KLR 141, Hon. Ojwang, J. (as he then was) held that:
"...A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."
[19] It is therefore my finding that the respondents’ Preliminary Objection was improperly taken and must be deprecated. In Mukisa Biscuits Manufacturing case Sir Charles Newbold, P. emphasized the point that:
“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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
[20] In the light of the foregoing, I find no merit in the respondents’ Preliminary Objection dated 10 th February 2026. The same is hereby dismissed with an order that the costs thereof be borne by the respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17 TH DAY OF APRIL 2026