I. Preliminaries.
1. The Judgement of this Honourable Court pertains to the Judicial Review suit instituted by MWAHUI KAMANZA MWAYELA, the Ex – Parte Applicant, against THE KENYA WILDLIFE SERVICE, CABINET SECRETARY – MINISTRY OF TOURISM & WILDLIFE AND THE HON. ATTORNEY GENERAL , the 1 st , 2 nd & 3 rd Respondents herein.
2. As a background, the Ex – Parte Applicant filed a Chamber Summons dated 9 th February, 2026 under the provisions of Sections 19 (a) and 25 (1), (2) and (3) (b) of the Wildlife Conservation and Management Act, Cap 376 and Order 53 Rule 1 of the Civil Procedure Rules, 2010 seeking for leave to apply for Judicial Review Prerogative Writs of Mandamus. On 11 th February, 2026, the leave was duly granted by this Honourable Court.
3. Subsequently, he filed and served the substantive motion dated 14 th February, 2026 as required by the law. Upon service, the 1 st Respondent opposed the suit through a Replying Affidavit sworn on 25 th March, 2026 by its Legal Officer, Mr. Derrick Karinga, and thereafter, and rather belatedly, through a Notice of Preliminary Objection dated 29 th June, 2026. Despite service, the 2 nd and 3 rd Respondents declined to file any responses nor participate in these proceedings, leaving the Honourable Court to make a determination of the matter as against them on its own merit.
4. For good order, the Honourable Court shall dispose of the Notice of Preliminary Objection first, since if sustained it would dispose of the entire suit in limine , and thereafter proceed with the rest of the analysis on the substantive motion.
II. The Applicants case.
5. Through the substantive motion, the Applicants sought for the following prayers:
a. That an order of Mandamus to issue against the 1st Respondent compelling it to pay compensation to the Ex – Parte Applicant in the sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) as contemplated under Section 25 (3) (b) of the Wildlife Conservation and Management Act.
b. Costs of this suit be borne by the 1 st Respondent.
c. Interests be allowed on order (a) above at 14% from 28 th June, 2023 when the cause of action arose until payment in full.
6. The application was premised on the grounds, testimonial facts and averments made out under the 11 Paragraphed Verifying Affidavit of – MWAHUI KAMANZA MWAYELA, the Applicant herein sworn and dated 9 th February 2026 with four (4) annextures marked as “MKM - 01 to MKM - 04”. The Applicant averred as follows that: -
a) He was the Ex - Parte Applicant herein. He had predominantly being a farmer up until when he got attacked by an elephant.
b) He was indeed conversant with the facts giving rise to this application and therefore competent to swear this affidavit.
c) On 28 th June, 2023, he was attacked by elephants that had left their natural habitats and sustained bodily injuries as a result thereof being head injuries and multiple rib fractures. Annexed herein and marked as “MKM - 01” was a copy of the P3 – form.
d) He filed a claim compensation form issued on 29 th January, 2024 by the KWS at their station based at Kisite Mpunguti Marine Park. Annexed herein and marked as “MKM - 02” was a copy of the claim compensation form.
e) Since January, 2024 to date, it had been more than 2 years, the 1 st Respondent had failed to compensate him for the attack and injuries he sustained. He walked with the aid of crutches and had visible bodily impairment as could be confirmed in the letter by the Chief. Annexed herein and marked as “MKM - 03” was a copy of medical discharge abstract, Chief’s letter and copy of his National Identity card.
f) On the material day of the attack in the year 2023, he was coming from the shop at Mnarani market heading back home when he was attacked by the elephant. Despite having lodged a compensation claim form with the KWS, they had never made any effort to compensate him.
g) He was unable to continue with his normal farming activities and make a good living ever since the accident.
h) He was advised by his advocates on record that this court had authority to compel the 1 st Respondent to submit the claim and recommendation it made to the 2 nd Respondent, if any, for compensation and the 1 st Respondent ought to be compelled to compensate him.
i) He was advised by his advocates on record that more than 60 days had lapsed without compensation being made as contemplated under regulations 12 and 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017.
j) His advocates had also followed up with the 1 st Respondent with little success. Annexed herein and marked as “MKM - 04” was a copy of the demand letter)
k) The 1 st Respondent had deliberately failed to make recommendation, if any, to the 2 nd Respondent so as to deny him/frustrate the compensation due to him.
l) He prayed that the orders sought herein were granted as prayed.
m) What was deponed to herein was true to the best of my knowledge, information and belief.
7. Additionally, the Applicants filed a Statutory Statement under the provision of Order 53 Rule 1 (2) of the Civil Procedure Rules, 2010 where he contended the failure, refusal and/or neglect by the 1 st and 2 nd Respondents to process and pay his compensation claim lodged in January, 2024, in violation of the timelines set out under Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017.
8. Thus, by way of Judicial Review, the Applicant sought the following reliefs:-: -
a) An order of Mandamus to issue against the 1st Respondent compelling it to pay compensation to the Ex – Parte Applicant in the sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) as contemplated under Section 25 (3) (b) of the Wildlife Conservation and Management Act.
b) Costs of the suit.
c) Interests be allowed on order (a) above at 14% from 28/06/2023 when the cause of action arose until payment in full.
9. The Applicants relied on the grounds upon which reliefs which were sought that: -
i. The Ex – Parte Applicant herein was a law – abiding citizen, predominantly a farmer, living and working for gain within Kinango Sub – County of Kwale County.
ii. On 28 th June, 2023 he was attacked and seriously injured by elephants that had strayed from their natural habitats, and he blames the 1 st Respondent for its negligence in failing to ensure that the elephants were contained in their habitats.
iii. He followed the compensation mechanism laid down under Section 25 of the Wildlife Conservation and Management Act, Cap. 376 by filing a Compensation Claim Form with the 1 st Respondent in January, 2024, with the last part of the said form being duly filled on 20 th September, 2025.
iv. Under Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017, the claim ought to have been verified and recommended by the County Wildlife Conservation and Compensation Committee within thirty (30) days and paid by the 2nd Respondent within a further thirty (30) days, being a cumulative period of sixty (60) days.
v. It was now more than two (2) years of non – compliance with Regulation 27 of the 2017 Regulations by the 1 st and 2 nd Respondents.
vi. Under Section 4 of the Fair Administrative Action Act, every person has a right to an administrative action which was inter alia expeditious and efficient, and an administrative action was defined to include an omission.
vii. This Honourable Court is being called upon as the last bastion of hope to make orders compelling the 1st Respondent to compensate the Ex – Parte Applicant for the injuries sustained due to the attack by the elephants.
10. Through the Further Affidavit sworn on 4 th March, 2026 in response to the Replying Affidavit, the Ex – Parte Applicant averred that the question of who between the 1 st and 2 nd Respondents is to make the compensation was settled by the Court of Appeal in the case of:- “ Kenya Wildlife Service – Versus - Joseph Musyoki Kalonzo [2017] eKLR” ; that the P3 Form annexed as “MKM - 01” on its face captures the OB No. as 03/28/06/2023 and confirmed the date and time of the attack as 28 th June, 2023 at 1500 hours; that the Chief’s letter annexed as “MKM-03” was clearly dated 19 th June, 2025 and not 19 th June, 2022 as the 1 st Respondent was attempting to mislead the Honourable Court; that he indeed lodged the Claim Form issued to him at the Kisite Mpunguti Marine Park Station on 29 th January, 2024 as the 1 st Respondent itself confirms the reporting of the incident at the said station; and that having submitted his claim in the year 2024 with no compensation forthcoming, there was nothing more he could had done other than to approach this Honourable Court.
III. The case of the 1 st Respondent
11. In opposition to the suit, the 1 st Respondent relied on the 25 Paragraphed Replying Affidavit sworn on 25 th March, 2026 by Mr. Derrick Karinga, its Legal Officer, with one (1) annexture marked as the “DK - 1”. The deponent averred that: -
i. The he was the 1 st Respondent’s Legal Officer, fully conversant with the facts of this case and with the authority to act on behalf of the 1 st Respondent thus competent to make this Affidavit.
ii. He had read and understood the Notice of Motion Application dated 14 th February, 2026, the Statutory Statement and the Verifying Affidavit of Mwahui Kamanza Mwayela dated 9 th February, 2026, sworn on even date and the Annexures thereto and in response wish to state thus.
iii. The Application was fatally defective and bad in law as it sought to compel the 1 st Respondent to do that which was not within the 1 st Respondent’s mandate.
iv. The 1 st Respondent was established under the provision Section 6 of the Wildlife Conservation and Management Act, 2013 and its functions are provided for under section 7 of the Act.
v. The Kwale County Wildlife Conservation Committee (CWCC) as established under the provision of Section 18 of the Wildlife Conservation and Management Act, 2013 (WCMA) is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under the provision of Sections 19 (a) and 25 (2) of the WCMA.
vi. The 1 st Respondent was only the Secretary to the County Wildlife Conservation Committees established under Section 18 of the Wildlife Conservation and Management Act, 2013.
vii. The Ex - Parte Applicant reported to the 1 st Respondent’s Kisite Mpunguti Station, an incident of alleged attack by an Elephant on 28 th June, 2023 causing injuries.
viii. THAT according the Ex-parte Applicant’s Annexure marked as “MKM - 01” as the Ex - Parte Applicant was sent to hospital on 18 th January, 2023 way before the said accident occurred.
ix. Unless the County Wildlife Compensation Committee was allowed to interrogate the said documents during the hearing and decide, this court had no jurisdiction in allowing an order of mandamus for the payment of compensation.
x. The Ex - Parte Applicant’s Exhibit marked as “MKM - 03” at page 2 - letter by the Chief was dated 19 th June 202, less than a month, before the County Wildlife Compensation Committee commenced the hearing of Human Wildlife Compensation cases. Annexed herewith and marked as “DK - 1” was a copy of the excerpt of the minutes of the CWCC meeting.
xi. It was therefore evident that as at 19 th June 2025, the Ex -Parte Applicant had not presented his compensation claim together with the accompanying documents to the 1st Respondent for consideration by the CWCC.
xii. There was no evident whatsoever to demonstrate that the Ex - Parte Applicant had, to date, presented the said documents and accompanying documents to the 1st Respondent for onward forwarding to the CWCC for hearing.
xiii. The Ex - Parte Applicant’s Application was therefore vexatious, false and misleading and should be dismissed in toto.
xiv. Upon being heard by the County Wildlife Compensation Committee (CWCC), the human wildlife compensation claim decisions was placed before the 2 nd Respondent’s Ministerial Wildlife Conservation Committee for purposes of confirming the decision and processing the payment as provided for in Section 24(2) of the WCMA.
xv. Section 25 (3) of the Wildlife Conservation and Management Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism and Wildlife.
xvi. Payment of compensation by the Cabinet Secretary as contemplated by the provision of Section 25 (3) of the WCMA was only upon recommendation by the 2 nd Respondent and not the 1 st Respondent.
xvii. In essence, the Claimant has failed to exhaust all the mechanisms set down for hearing of Human Wildlife Conflict cases before approaching this Honourable Court.
xviii. In effect, the Ex - Parte Applicant was asking this Honourable Court to be the County Wildlife Conservation committee, perform its functions under the provision of Section 19 (a) of the WCMA by reviewing the claim and recommending the same for compensation. As if that is not enough, the Ex - Parte Applicant was asking this Court to take over the function of the 2 nd Respondent - Cabinet Secretary under the provision Section 25 (3) by considering recommendations and approving the payment of it. The Ex - Parte Applicant went further to ask this Honourable Court to ignore the strict provisions of Section 24 (2) and 25 (3) of the WCMA and in total contravention of this provision, compel the 1 st Respondent to pay compensation.
xix. It was not the 1 st Respondent’s duty to compensate the Applicant and by the Ex - Parte Applicant moving this Honourable Court to compel the 1 st Respondent to make such payments, the Ex - Parte Applicant was urging this Court to act beyond its powers and such reliefs if granted, would amount to an illegality.
xx. The Ex - Parte Applicant was asking this Honourable Court to impose on the 1 st Respondent a duty which had not only not been statutorily bestowed upon the 1 st Respondent but is in fact a preserve of another entity, the 2 nd Respondent.
xxi. What the Ex - Parte Applicant was asking of this Honourable Court through the reliefs sought, was tantamount to amendment of legislation through imposition of a duty.
xxii. Issuing the orders sought by the Ex - Parte Applicant against the 1 st Respondent would be in violation of Section 24, 25(2), (3) and (6) of the WCMA and this would cripple its conservation efforts and operations to the detriment of the general public.
xxiii. This Honourable Court could not and should not issue an order of Mandamus to compel the 1 st Respondent to make a payment where no such decision had been made by the relevant tribunal or committee.
xxiv. The Application was not merited as against the 1 st Respondent and should be dismissed with costs.
xxv. What was deponed to herein was true to the best of his knowledge, information and belief save where otherwise stated sources whereof have been disclosed.
a) Additionally, the 1 st Respondent filed the Notice of Preliminary Objection dated 29 th June, 2026 raised on a point of law couched in the following terms that: -
b) The suit herein was Res Sub - Judice to a similar suit at “ the Kwale High Court Case Number HCJRMISC/E003/2026; Mwahui Kamanza Mwayela (Ex - Parte Applicant) – Versus - Kenya Wildlife Service, Cabinet Secretary Ministry of Tourism and Wildlife & The Honourable Attorney General”.
c) Therefore the suit herein was incompetent, bad in law and should be struck out with costs to the 1st Respondent.
IV. Submissions
12. On 14 th April, 2026 in the presence of all parties, the Honourable Court directed that the Notice of Preliminary Objection and the Judicial Review Application should be disposed of by way of written submissions.
13. Pursuant thereto, the Ex – Parte Applicant filed his written submissions dated 4 th April, 2026 while the 1 st Respondent filed its written submissions dated 21 st July, 2026 together with its List of Authorities.
14. A Judgement date was thereafter reserved on 28 th July, 2026 by the Court accordingly.
A. The Written Submissions by the Applicant
15. The Law firm of Messrs. Tysons Mwendwa Moses & Associates filed their written submissions. Mr. Mwendwa Advocate commenced the submissions by providing a brief background of the matter. The Learned Counsel isolated three (3) issues for determination, namely: whether the Ex – Parte Applicant duly lodged the Compensation Claim Form of Serial No. 00915 in January, 2024; whether the orders of mandamus sought should be issued against the 1 st Respondent or the 2 nd Respondent; and whether the Ex – Parte Applicant has exhausted all the mechanisms for human – wildlife conflict cases.
16. On the first issue, the Learned Counsel submitted that annexure marked as “MKM - 02” was a duly completed Claim Form whose relevant parts were visibly filled by the relevant offices, and that the Ex – Parte Applicant had brought himself within the meaning of Section 25 of the Act thereby triggering the compensation process.
17. On the second issue, the Learned Counsel placed reliance on the case of: “Kenya Wildlife Service – Versus - Joseph Musyoki Kalonzo [2017] eKLR” for the proposition that neither the Court nor the parties should concern themselves with the internal arrangements of the 1 st Respondent as to whether it was its Chief Executive Officer or the Cabinet Secretary who should disburse the money, as well as the cases of:- “ Republic – Versus - Kenya Wildlife Service & 2 Others; Muhia (Ex – Parte Applicant) [2024] KEHC 8086 (KLR) and Republic – Versus - Kenya Wildlife Service & 2 Others; Mlongo Tsuma Mrisa (Ex – Parte Applicant), High Court JR Misc. Application No. E006 of 2024” on the nature of the remedy of Mandamus and the violation of the statutory timelines under Regulation 27 of the Compensation Regulations, 2017.
18. On the third issue, the Learned Counsel submitted that “the doctrine of exhaustion” never arose where there had been reluctance by the 1 st and 2 nd Respondents to make compensation, relying on the cases of:- “ Kenya Wildlife Service – Versus - Stephen M’Ndiene [2025] KEHC 2478 (KLR) and Republic – Versus - Kenya Wildlife Service & 2 Others; Hamesa (Ex – Parte) [2026] KEHC 3608 (KLR) ”. The Learned Counsel urged the Honourable Court to allow the substantive motion as prayed.
B. The Written Submissions by the 1 st Respondent
19. The office of the Legal for KWS filed their written submissions on behalf of the 1 st Respondent herein. Mr. Silvester Nyaga, Advocate, framed a single issue for determination, being whether the Compensation Claim Form was duly completed by the relevant parties and resubmitted to the 1 st Respondent together with the supporting documentation for deliberation by the CWCCC. Counsel submitted that as at 19 th June, 2025, being the date of the Chief’s letter, and 20 th September, 2025, when Part III of the Form was signed by the Officer Commanding Station, the Ex – Parte Applicant had not presented his Claim Form to the 1st Respondent for consideration by the CWCCC, which Committee deliberated a total of 593 claims between 16 th and 22 nd July, 2025.
20. The Learned Counsel relied on the cases of:- “Republic – Versus - County Government of Nairobi & 2 Others Ex – Parte Kingpost Limited [2021] eKLR and Republic – Versus - Kenya Vision 2030 Delivery Board & Another Ex – Parte Eng. Judah Abekah [2015] eKLR”, which adopted the celebrated pronouncement of the Court of Appeal in the case of:- “ Kenya National Examination Council – Versus - Republic Ex – Parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR”, for the propositions that an order of mandamus issues only to compel the performance of a statutory duty owed to an applicant which the public body, having been asked, has refused or failed to discharge, and that where a statute leaves discretion as to the mode of performing the duty, Mandamus could not command the duty to be carried out in a specific way. The Learned Counsel concluded that the purpose of Judicial Review was to provide a remedy where there is maladministration, the laxity in this particular case was on the part of the Ex – Parte Applicant, and the Honourable Court could not grant an order of Mandamus compelling the payment of a sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) where no such decision exists as against the 1 st Respondent. He urged the Court to dismiss the suit with costs.
V. Analysis & Determination
21. I have carefully assessed the Judicial Review application brought to this Honourable Court by the Ex – Parte Applicant, the Notice of Preliminary Objection and the Replying Affidavit by the 1 st Respondent, the rich and rival written submissions with the cited authorities, and the relevant provisions of the Constitution of Kenya, 2010 and the statutes. As already indicated above, despite all the directions made by the Court, the 2 nd and 3 rd Respondents declined to file any responses.
22. For the Honourable Court to reach an informed, reasonable, fair and Equitable decision, it has crystalized the subject matter into four (4) salient issues for analysis. These are as follows: -
a) Whether the Notice of Preliminary Objection dated 29 th June, 2026 by the 1 st Respondent on the ground of Res Sub - Judice has any merit whatsoever to warrant the striking out of the suit?
b) Whether this Honourable Court was clothed with the requisite jurisdiction to hear and determine the Judicial Review suit?
c) Whether the Ex – Parte Applicant is entitled to the prerogative reliefs sought?
d) Who will bear the costs of the suit?
ISSUE No. a). Whether the Notice of Preliminary Objection dated 29 th June, 2026 by the 1 st Respondent on the ground of Res Sub - Judice has any merit whatsoever to warrant the striking out of the suit.
23. Under this Sub – heading, the Honourable Court notes that the main substratum of the matter is a preliminary objection by the Objector to the whole suit. For this reason, in determining this instant Notice of Preliminary Objection, the Court will first consider the nature, meaning and scope of the concept of a Preliminary Objection.
24. According to the Black Law Dictionary a preliminary objection is defined as:-
In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
25. The court in the case of:- “ Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Limited (1969) EA 696” described a preliminary objection as hereunder:-
'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 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.'
Sir Charles Newbold, JA in the same case stated 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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'
26. Similarly, in the case of:- “ Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the court stated thus:-
'A Preliminary Objection 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.'
27. Further, 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 th December, 2010) , (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: -
“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.’
28. The Supreme Court addressed its mind on this issue in the case of:- “ Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:-
“Thus, 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.”
29. Therefore, from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of:- “ In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that:-
“A Preliminary Objection cannot be raised if any facts has to be ascertained.”
30. I have further relied on the decision 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: -
(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
(ii) 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
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
31. Applying the above principles to the Preliminary Objection at hand, the Honourable Court makes the following observations. First and foremost, beyond the bare citation of a case number, being the Kwale High Court Case Number HCJRMISC/E003/2026, the 1 st Respondent placed absolutely no material before this Court – no pleadings, no orders, no record whatsoever – from which the Court could satisfy itself of the existence of the said suit, the date of its institution, the parties thereto, the reliefs sought therein and, most fundamentally, whether the matters in issue therein are directly and substantially in issue in the present suit. Each of these matters is a question of fact which must be ascertained by way of evidence. That, without more, takes the objection outside the strict confines of a Preliminary Objection as delineated in “the Mukisa Biscuit case (Supra)” , for it is trite that a Preliminary Objection cannot be raised if any fact has to be ascertained.
32. Secondly, and even more significantly, on the face of the case numbers themselves, the present suit is Number E002 of 2026 while the suit said to render it res sub judice is Number E003 of 2026. The doctrine of res sub judice operates to stay the subsequently instituted suit in deference to the previously instituted one, and not the converse. The 1 st Respondent did not demonstrate that the said High Court suit was instituted prior to the present suit. Thirdly, even where the doctrine is properly established, the remedy prescribed under the provision Section 6 of the Civil Procedure Act is a stay of the trial of the subsequent suit and not the striking out of the suit as the 1 st Respondent has prayed. Fourthly, the Honourable Court notes that the Notice of Preliminary Objection was filed on 29 th June, 2026, nearly five (5) months after the institution of the suit, after the close of pleadings and after the Ex – Parte Applicant had filed his written submissions, which lends credence to the impression that it was but a mere afterthought.
33. The upshot of the foregoing is that the Notice of Preliminary Objection dated 29 th June, 2026 by the 1 st Respondent is devoid of merit, misconceived and incompetent. Therefore, the objection is hereby overruled and dismissed in its entirety. Having so found, the Honourable Court will now proceed with the rest of the analysis on the substantive motion.
ISSUE No. b) Whether this Honourable Court is clothed with the requisite jurisdiction to hear and determine the Judicial Review suit.
34. Under this sub – heading, the significance of jurisdiction to any judicial proceeding cannot be gainsaid. Jurisdiction is the fountain from which the exercise of all judicial power flows, and without it, a court of law is bereft of the power to take even a single step. The classicus locus on this point remains the decision o
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1. The Judgement of this Honourable Court pertains to the Judicial Review suit instituted by MWAHUI KAMANZA MWAYELA, the Ex – Parte Applicant, against THE KENYA WILDLIFE SERVICE, CABINET SECRETARY – MINISTRY OF TOURISM & WILDLIFE AND THE HON. ATTORNEY GENERAL , the 1 st , 2 nd & 3 rd Respondents herein.
2. As a background, the Ex – Parte Applicant filed a Chamber Summons dated 9 th February, 2026 under the provisions of Sections 19 (a) and 25 (1), (2) and (3) (b) of the Wildlife Conservation and Management Act, Cap 376 and Order 53 Rule 1 of the Civil Procedure Rules, 2010 seeking for leave to apply for Judicial Review Prerogative Writs of Mandamus. On 11 th February, 2026, the leave was duly granted by this Honourable Court.
3. Subsequently, he filed and served the substantive motion dated 14 th February, 2026 as required by the law. Upon service, the 1 st Respondent opposed the suit through a Replying Affidavit sworn on 25 th March, 2026 by its Legal Officer, Mr. Derrick Karinga, and thereafter, and rather belatedly, through a Notice of Preliminary Objection dated 29 th June, 2026. Despite service, the 2 nd and 3 rd Respondents declined to file any responses nor participate in these proceedings, leaving the Honourable Court to make a determination of the matter as against them on its own merit.
4. For good order, the Honourable Court shall dispose of the Notice of Preliminary Objection first, since if sustained it would dispose of the entire suit in limine , and thereafter proceed with the rest of the analysis on the substantive motion.
II. The Applicants case.
5. Through the substantive motion, the Applicants sought for the following prayers:
a. That an order of Mandamus to issue against the 1st Respondent compelling it to pay compensation to the Ex – Parte Applicant in the sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) as contemplated under Section 25 (3) (b) of the Wildlife Conservation and Management Act.
b. Costs of this suit be borne by the 1 st Respondent.
c. Interests be allowed on order (a) above at 14% from 28 th June, 2023 when the cause of action arose until payment in full.
6. The application was premised on the grounds, testimonial facts and averments made out under the 11 Paragraphed Verifying Affidavit of – MWAHUI KAMANZA MWAYELA, the Applicant herein sworn and dated 9 th February 2026 with four (4) annextures marked as “MKM - 01 to MKM - 04”. The Applicant averred as follows that: -
a) He was the Ex - Parte Applicant herein. He had predominantly being a farmer up until when he got attacked by an elephant.
b) He was indeed conversant with the facts giving rise to this application and therefore competent to swear this affidavit.
c) On 28 th June, 2023, he was attacked by elephants that had left their natural habitats and sustained bodily injuries as a result thereof being head injuries and multiple rib fractures. Annexed herein and marked as “MKM - 01” was a copy of the P3 – form.
d) He filed a claim compensation form issued on 29 th January, 2024 by the KWS at their station based at Kisite Mpunguti Marine Park. Annexed herein and marked as “MKM - 02” was a copy of the claim compensation form.
e) Since January, 2024 to date, it had been more than 2 years, the 1 st Respondent had failed to compensate him for the attack and injuries he sustained. He walked with the aid of crutches and had visible bodily impairment as could be confirmed in the letter by the Chief. Annexed herein and marked as “MKM - 03” was a copy of medical discharge abstract, Chief’s letter and copy of his National Identity card.
f) On the material day of the attack in the year 2023, he was coming from the shop at Mnarani market heading back home when he was attacked by the elephant. Despite having lodged a compensation claim form with the KWS, they had never made any effort to compensate him.
g) He was unable to continue with his normal farming activities and make a good living ever since the accident.
h) He was advised by his advocates on record that this court had authority to compel the 1 st Respondent to submit the claim and recommendation it made to the 2 nd Respondent, if any, for compensation and the 1 st Respondent ought to be compelled to compensate him.
i) He was advised by his advocates on record that more than 60 days had lapsed without compensation being made as contemplated under regulations 12 and 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017.
j) His advocates had also followed up with the 1 st Respondent with little success. Annexed herein and marked as “MKM - 04” was a copy of the demand letter)
k) The 1 st Respondent had deliberately failed to make recommendation, if any, to the 2 nd Respondent so as to deny him/frustrate the compensation due to him.
l) He prayed that the orders sought herein were granted as prayed.
m) What was deponed to herein was true to the best of my knowledge, information and belief.
7. Additionally, the Applicants filed a Statutory Statement under the provision of Order 53 Rule 1 (2) of the Civil Procedure Rules, 2010 where he contended the failure, refusal and/or neglect by the 1 st and 2 nd Respondents to process and pay his compensation claim lodged in January, 2024, in violation of the timelines set out under Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017.
8. Thus, by way of Judicial Review, the Applicant sought the following reliefs:-: -
a) An order of Mandamus to issue against the 1st Respondent compelling it to pay compensation to the Ex – Parte Applicant in the sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) as contemplated under Section 25 (3) (b) of the Wildlife Conservation and Management Act.
b) Costs of the suit.
c) Interests be allowed on order (a) above at 14% from 28/06/2023 when the cause of action arose until payment in full.
9. The Applicants relied on the grounds upon which reliefs which were sought that: -
i. The Ex – Parte Applicant herein was a law – abiding citizen, predominantly a farmer, living and working for gain within Kinango Sub – County of Kwale County.
ii. On 28 th June, 2023 he was attacked and seriously injured by elephants that had strayed from their natural habitats, and he blames the 1 st Respondent for its negligence in failing to ensure that the elephants were contained in their habitats.
iii. He followed the compensation mechanism laid down under Section 25 of the Wildlife Conservation and Management Act, Cap. 376 by filing a Compensation Claim Form with the 1 st Respondent in January, 2024, with the last part of the said form being duly filled on 20 th September, 2025.
iv. Under Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017, the claim ought to have been verified and recommended by the County Wildlife Conservation and Compensation Committee within thirty (30) days and paid by the 2nd Respondent within a further thirty (30) days, being a cumulative period of sixty (60) days.
v. It was now more than two (2) years of non – compliance with Regulation 27 of the 2017 Regulations by the 1 st and 2 nd Respondents.
vi. Under Section 4 of the Fair Administrative Action Act, every person has a right to an administrative action which was inter alia expeditious and efficient, and an administrative action was defined to include an omission.
vii. This Honourable Court is being called upon as the last bastion of hope to make orders compelling the 1st Respondent to compensate the Ex – Parte Applicant for the injuries sustained due to the attack by the elephants.
10. Through the Further Affidavit sworn on 4 th March, 2026 in response to the Replying Affidavit, the Ex – Parte Applicant averred that the question of who between the 1 st and 2 nd Respondents is to make the compensation was settled by the Court of Appeal in the case of:- “ Kenya Wildlife Service – Versus - Joseph Musyoki Kalonzo [2017] eKLR” ; that the P3 Form annexed as “MKM - 01” on its face captures the OB No. as 03/28/06/2023 and confirmed the date and time of the attack as 28 th June, 2023 at 1500 hours; that the Chief’s letter annexed as “MKM-03” was clearly dated 19 th June, 2025 and not 19 th June, 2022 as the 1 st Respondent was attempting to mislead the Honourable Court; that he indeed lodged the Claim Form issued to him at the Kisite Mpunguti Marine Park Station on 29 th January, 2024 as the 1 st Respondent itself confirms the reporting of the incident at the said station; and that having submitted his claim in the year 2024 with no compensation forthcoming, there was nothing more he could had done other than to approach this Honourable Court.
III. The case of the 1 st Respondent
11. In opposition to the suit, the 1 st Respondent relied on the 25 Paragraphed Replying Affidavit sworn on 25 th March, 2026 by Mr. Derrick Karinga, its Legal Officer, with one (1) annexture marked as the “DK - 1”. The deponent averred that: -
i. The he was the 1 st Respondent’s Legal Officer, fully conversant with the facts of this case and with the authority to act on behalf of the 1 st Respondent thus competent to make this Affidavit.
ii. He had read and understood the Notice of Motion Application dated 14 th February, 2026, the Statutory Statement and the Verifying Affidavit of Mwahui Kamanza Mwayela dated 9 th February, 2026, sworn on even date and the Annexures thereto and in response wish to state thus.
iii. The Application was fatally defective and bad in law as it sought to compel the 1 st Respondent to do that which was not within the 1 st Respondent’s mandate.
iv. The 1 st Respondent was established under the provision Section 6 of the Wildlife Conservation and Management Act, 2013 and its functions are provided for under section 7 of the Act.
v. The Kwale County Wildlife Conservation Committee (CWCC) as established under the provision of Section 18 of the Wildlife Conservation and Management Act, 2013 (WCMA) is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under the provision of Sections 19 (a) and 25 (2) of the WCMA.
vi. The 1 st Respondent was only the Secretary to the County Wildlife Conservation Committees established under Section 18 of the Wildlife Conservation and Management Act, 2013.
vii. The Ex - Parte Applicant reported to the 1 st Respondent’s Kisite Mpunguti Station, an incident of alleged attack by an Elephant on 28 th June, 2023 causing injuries.
viii. THAT according the Ex-parte Applicant’s Annexure marked as “MKM - 01” as the Ex - Parte Applicant was sent to hospital on 18 th January, 2023 way before the said accident occurred.
ix. Unless the County Wildlife Compensation Committee was allowed to interrogate the said documents during the hearing and decide, this court had no jurisdiction in allowing an order of mandamus for the payment of compensation.
x. The Ex - Parte Applicant’s Exhibit marked as “MKM - 03” at page 2 - letter by the Chief was dated 19 th June 202, less than a month, before the County Wildlife Compensation Committee commenced the hearing of Human Wildlife Compensation cases. Annexed herewith and marked as “DK - 1” was a copy of the excerpt of the minutes of the CWCC meeting.
xi. It was therefore evident that as at 19 th June 2025, the Ex -Parte Applicant had not presented his compensation claim together with the accompanying documents to the 1st Respondent for consideration by the CWCC.
xii. There was no evident whatsoever to demonstrate that the Ex - Parte Applicant had, to date, presented the said documents and accompanying documents to the 1st Respondent for onward forwarding to the CWCC for hearing.
xiii. The Ex - Parte Applicant’s Application was therefore vexatious, false and misleading and should be dismissed in toto.
xiv. Upon being heard by the County Wildlife Compensation Committee (CWCC), the human wildlife compensation claim decisions was placed before the 2 nd Respondent’s Ministerial Wildlife Conservation Committee for purposes of confirming the decision and processing the payment as provided for in Section 24(2) of the WCMA.
xv. Section 25 (3) of the Wildlife Conservation and Management Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism and Wildlife.
xvi. Payment of compensation by the Cabinet Secretary as contemplated by the provision of Section 25 (3) of the WCMA was only upon recommendation by the 2 nd Respondent and not the 1 st Respondent.
xvii. In essence, the Claimant has failed to exhaust all the mechanisms set down for hearing of Human Wildlife Conflict cases before approaching this Honourable Court.
xviii. In effect, the Ex - Parte Applicant was asking this Honourable Court to be the County Wildlife Conservation committee, perform its functions under the provision of Section 19 (a) of the WCMA by reviewing the claim and recommending the same for compensation. As if that is not enough, the Ex - Parte Applicant was asking this Court to take over the function of the 2 nd Respondent - Cabinet Secretary under the provision Section 25 (3) by considering recommendations and approving the payment of it. The Ex - Parte Applicant went further to ask this Honourable Court to ignore the strict provisions of Section 24 (2) and 25 (3) of the WCMA and in total contravention of this provision, compel the 1 st Respondent to pay compensation.
xix. It was not the 1 st Respondent’s duty to compensate the Applicant and by the Ex - Parte Applicant moving this Honourable Court to compel the 1 st Respondent to make such payments, the Ex - Parte Applicant was urging this Court to act beyond its powers and such reliefs if granted, would amount to an illegality.
xx. The Ex - Parte Applicant was asking this Honourable Court to impose on the 1 st Respondent a duty which had not only not been statutorily bestowed upon the 1 st Respondent but is in fact a preserve of another entity, the 2 nd Respondent.
xxi. What the Ex - Parte Applicant was asking of this Honourable Court through the reliefs sought, was tantamount to amendment of legislation through imposition of a duty.
xxii. Issuing the orders sought by the Ex - Parte Applicant against the 1 st Respondent would be in violation of Section 24, 25(2), (3) and (6) of the WCMA and this would cripple its conservation efforts and operations to the detriment of the general public.
xxiii. This Honourable Court could not and should not issue an order of Mandamus to compel the 1 st Respondent to make a payment where no such decision had been made by the relevant tribunal or committee.
xxiv. The Application was not merited as against the 1 st Respondent and should be dismissed with costs.
xxv. What was deponed to herein was true to the best of his knowledge, information and belief save where otherwise stated sources whereof have been disclosed.
a) Additionally, the 1 st Respondent filed the Notice of Preliminary Objection dated 29 th June, 2026 raised on a point of law couched in the following terms that: -
b) The suit herein was Res Sub - Judice to a similar suit at “ the Kwale High Court Case Number HCJRMISC/E003/2026; Mwahui Kamanza Mwayela (Ex - Parte Applicant) – Versus - Kenya Wildlife Service, Cabinet Secretary Ministry of Tourism and Wildlife & The Honourable Attorney General”.
c) Therefore the suit herein was incompetent, bad in law and should be struck out with costs to the 1st Respondent.
IV. Submissions
12. On 14 th April, 2026 in the presence of all parties, the Honourable Court directed that the Notice of Preliminary Objection and the Judicial Review Application should be disposed of by way of written submissions.
13. Pursuant thereto, the Ex – Parte Applicant filed his written submissions dated 4 th April, 2026 while the 1 st Respondent filed its written submissions dated 21 st July, 2026 together with its List of Authorities.
14. A Judgement date was thereafter reserved on 28 th July, 2026 by the Court accordingly.
A. The Written Submissions by the Applicant
15. The Law firm of Messrs. Tysons Mwendwa Moses & Associates filed their written submissions. Mr. Mwendwa Advocate commenced the submissions by providing a brief background of the matter. The Learned Counsel isolated three (3) issues for determination, namely: whether the Ex – Parte Applicant duly lodged the Compensation Claim Form of Serial No. 00915 in January, 2024; whether the orders of mandamus sought should be issued against the 1 st Respondent or the 2 nd Respondent; and whether the Ex – Parte Applicant has exhausted all the mechanisms for human – wildlife conflict cases.
16. On the first issue, the Learned Counsel submitted that annexure marked as “MKM - 02” was a duly completed Claim Form whose relevant parts were visibly filled by the relevant offices, and that the Ex – Parte Applicant had brought himself within the meaning of Section 25 of the Act thereby triggering the compensation process.
17. On the second issue, the Learned Counsel placed reliance on the case of: “Kenya Wildlife Service – Versus - Joseph Musyoki Kalonzo [2017] eKLR” for the proposition that neither the Court nor the parties should concern themselves with the internal arrangements of the 1 st Respondent as to whether it was its Chief Executive Officer or the Cabinet Secretary who should disburse the money, as well as the cases of:- “ Republic – Versus - Kenya Wildlife Service & 2 Others; Muhia (Ex – Parte Applicant) [2024] KEHC 8086 (KLR) and Republic – Versus - Kenya Wildlife Service & 2 Others; Mlongo Tsuma Mrisa (Ex – Parte Applicant), High Court JR Misc. Application No. E006 of 2024” on the nature of the remedy of Mandamus and the violation of the statutory timelines under Regulation 27 of the Compensation Regulations, 2017.
18. On the third issue, the Learned Counsel submitted that “the doctrine of exhaustion” never arose where there had been reluctance by the 1 st and 2 nd Respondents to make compensation, relying on the cases of:- “ Kenya Wildlife Service – Versus - Stephen M’Ndiene [2025] KEHC 2478 (KLR) and Republic – Versus - Kenya Wildlife Service & 2 Others; Hamesa (Ex – Parte) [2026] KEHC 3608 (KLR) ”. The Learned Counsel urged the Honourable Court to allow the substantive motion as prayed.
B. The Written Submissions by the 1 st Respondent
19. The office of the Legal for KWS filed their written submissions on behalf of the 1 st Respondent herein. Mr. Silvester Nyaga, Advocate, framed a single issue for determination, being whether the Compensation Claim Form was duly completed by the relevant parties and resubmitted to the 1 st Respondent together with the supporting documentation for deliberation by the CWCCC. Counsel submitted that as at 19 th June, 2025, being the date of the Chief’s letter, and 20 th September, 2025, when Part III of the Form was signed by the Officer Commanding Station, the Ex – Parte Applicant had not presented his Claim Form to the 1st Respondent for consideration by the CWCCC, which Committee deliberated a total of 593 claims between 16 th and 22 nd July, 2025.
20. The Learned Counsel relied on the cases of:- “Republic – Versus - County Government of Nairobi & 2 Others Ex – Parte Kingpost Limited [2021] eKLR and Republic – Versus - Kenya Vision 2030 Delivery Board & Another Ex – Parte Eng. Judah Abekah [2015] eKLR”, which adopted the celebrated pronouncement of the Court of Appeal in the case of:- “ Kenya National Examination Council – Versus - Republic Ex – Parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR”, for the propositions that an order of mandamus issues only to compel the performance of a statutory duty owed to an applicant which the public body, having been asked, has refused or failed to discharge, and that where a statute leaves discretion as to the mode of performing the duty, Mandamus could not command the duty to be carried out in a specific way. The Learned Counsel concluded that the purpose of Judicial Review was to provide a remedy where there is maladministration, the laxity in this particular case was on the part of the Ex – Parte Applicant, and the Honourable Court could not grant an order of Mandamus compelling the payment of a sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) where no such decision exists as against the 1 st Respondent. He urged the Court to dismiss the suit with costs.
V. Analysis & Determination
21. I have carefully assessed the Judicial Review application brought to this Honourable Court by the Ex – Parte Applicant, the Notice of Preliminary Objection and the Replying Affidavit by the 1 st Respondent, the rich and rival written submissions with the cited authorities, and the relevant provisions of the Constitution of Kenya, 2010 and the statutes. As already indicated above, despite all the directions made by the Court, the 2 nd and 3 rd Respondents declined to file any responses.
22. For the Honourable Court to reach an informed, reasonable, fair and Equitable decision, it has crystalized the subject matter into four (4) salient issues for analysis. These are as follows: -
a) Whether the Notice of Preliminary Objection dated 29 th June, 2026 by the 1 st Respondent on the ground of Res Sub - Judice has any merit whatsoever to warrant the striking out of the suit?
b) Whether this Honourable Court was clothed with the requisite jurisdiction to hear and determine the Judicial Review suit?
c) Whether the Ex – Parte Applicant is entitled to the prerogative reliefs sought?
d) Who will bear the costs of the suit?
ISSUE No. a). Whether the Notice of Preliminary Objection dated 29 th June, 2026 by the 1 st Respondent on the ground of Res Sub - Judice has any merit whatsoever to warrant the striking out of the suit.
23. Under this Sub – heading, the Honourable Court notes that the main substratum of the matter is a preliminary objection by the Objector to the whole suit. For this reason, in determining this instant Notice of Preliminary Objection, the Court will first consider the nature, meaning and scope of the concept of a Preliminary Objection.
24. According to the Black Law Dictionary a preliminary objection is defined as:-
In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
25. The court in the case of:- “ Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Limited (1969) EA 696” described a preliminary objection as hereunder:-
'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 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.'
Sir Charles Newbold, JA in the same case stated 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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'
26. Similarly, in the case of:- “ Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the court stated thus:-
'A Preliminary Objection 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.'
27. Further, 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 th December, 2010) , (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: -
“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.’
28. The Supreme Court addressed its mind on this issue in the case of:- “ Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:-
“Thus, 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.”
29. Therefore, from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of:- “ In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that:-
“A Preliminary Objection cannot be raised if any facts has to be ascertained.”
30. I have further relied on the decision 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: -
(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
(ii) 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
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
31. Applying the above principles to the Preliminary Objection at hand, the Honourable Court makes the following observations. First and foremost, beyond the bare citation of a case number, being the Kwale High Court Case Number HCJRMISC/E003/2026, the 1 st Respondent placed absolutely no material before this Court – no pleadings, no orders, no record whatsoever – from which the Court could satisfy itself of the existence of the said suit, the date of its institution, the parties thereto, the reliefs sought therein and, most fundamentally, whether the matters in issue therein are directly and substantially in issue in the present suit. Each of these matters is a question of fact which must be ascertained by way of evidence. That, without more, takes the objection outside the strict confines of a Preliminary Objection as delineated in “the Mukisa Biscuit case (Supra)” , for it is trite that a Preliminary Objection cannot be raised if any fact has to be ascertained.
32. Secondly, and even more significantly, on the face of the case numbers themselves, the present suit is Number E002 of 2026 while the suit said to render it res sub judice is Number E003 of 2026. The doctrine of res sub judice operates to stay the subsequently instituted suit in deference to the previously instituted one, and not the converse. The 1 st Respondent did not demonstrate that the said High Court suit was instituted prior to the present suit. Thirdly, even where the doctrine is properly established, the remedy prescribed under the provision Section 6 of the Civil Procedure Act is a stay of the trial of the subsequent suit and not the striking out of the suit as the 1 st Respondent has prayed. Fourthly, the Honourable Court notes that the Notice of Preliminary Objection was filed on 29 th June, 2026, nearly five (5) months after the institution of the suit, after the close of pleadings and after the Ex – Parte Applicant had filed his written submissions, which lends credence to the impression that it was but a mere afterthought.
33. The upshot of the foregoing is that the Notice of Preliminary Objection dated 29 th June, 2026 by the 1 st Respondent is devoid of merit, misconceived and incompetent. Therefore, the objection is hereby overruled and dismissed in its entirety. Having so found, the Honourable Court will now proceed with the rest of the analysis on the substantive motion.
ISSUE No. b) Whether this Honourable Court is clothed with the requisite jurisdiction to hear and determine the Judicial Review suit.
34. Under this sub – heading, the significance of jurisdiction to any judicial proceeding cannot be gainsaid. Jurisdiction is the fountain from which the exercise of all judicial power flows, and without it, a court of law is bereft of the power to take even a single step. The classicus locus on this point remains the decision o
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