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The Plaintiff filed this suit contemporaneously with an application dated 1st October 2025 seeking the following orders:
1. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued to restrain the Defendant from prematurely terminating the Sub-Lease Agreement dated 24th January 2022 and registered on 22nd April 2022 between the Plaintiff and the Defendant, before the arrival of the period permissible for termination of the Sub-Lease.
2. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued to restrain the Defendant, its agents, directors, employees, officers, or any other person acting on its behalf from vacating the leased premises identified as Shops Nos. F.5, F.6, and F.7 together with the adjoining passage measuring approximately 949.41 square metres on the first floor of the Defendant’s mall known as Likoni Mall erected on Title Number MOMBASA/BLOCK XLVIII/157.
3. That costs of this application be paid by the Defendant.
Upon the matter coming up for hearing of the said application, this Honourable Court directed the parties to canvass both the application and the preliminary objection by way of written submissions.
The Defendant began by contending that the Plaintiff, without leave of the court, had proceeded to file an Amended Plaint contrary to the principles enunciated by the Supreme Court in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), which held that a party cannot amend pleadings once jurisdiction has been contested. The Court, it was argued, has power under Order 2 Rule 15 of the Civil Procedure Rules, 2010 to strike out such an amended pleading suo moto.
In response, the Plaintiff argued that Order 8 Rule 1 of the Civil Procedure Rules allows a party, without leave of the court, to amend any pleading once at any time before pleadings are closed. Order 2 Rule 13 provides that pleadings close fourteen days after service of the reply to defence, or, where there is no reply, fourteen days after service of the defence itself. The Plaintiff submitted that at the time it filed its Amended Plaint, pleadings had not closed because the Defendant had not yet filed a defence and still has not done so. Further, it was argued that an amended plaint can only be challenged through a formal application, not through written submissions from the bar.
I agree with the Plaintiff that pleadings had not closed and, hence, the objection is not merited.
The next issue is whether the Defendant’s preliminary objection was properly raised.
The Plaintiff argued that the preliminary objection was not properly taken. It is now well settled that a party seeking to challenge the propriety of a suit must first do so in a statement of defence before raising the challenge by way of a preliminary objection. This principle has been affirmed in several decisions, including the Court of Appeal decision in Stephen Onyango Achola & another v Edward Hongo Sule & another [2004] eKLR, where it was held that a party who fails to plead limitation in its defence cannot raise it as a preliminary objection.
Similarly, in Unilever Tea Kenya Limited v Andrew Cheruiyot Rotich & 3 others [2020] eKLR, Justice A.K. Kaniaru held that the usual procedure when raising a point of law that may dispose of a suit before trial is first to file a defence in which the point is pleaded.
In National Bank of Kenya v Data Solve Limited & 2 others [2017] eKLR, Tuiyott J. (as he then was) reaffirmed that a party cannot rely on certain defences unless specifically pleaded, including limitation, fraud, or illegality.
The Plaintiff therefore submitted that the Defendant’s objection to this court’s jurisdiction ought to have been pleaded in a statement of defence before being raised as a preliminary objection. The Defendant did not file a defence before filing the preliminary objection and has not done so to date. Without such a defence, the issue has not been properly brought before this court, and the Defendant is disentitled from raising it.
The Plaintiff/Applicant had earlier argued that no defence has been filed and the pleadings are not closed. Can they equally argue that the preliminary objection must be raised in the defence? I note that in all the cited authorities, defences had been filed, and the courts were considering complete pleadings at judgment stage. The concern there was avoidance of trial by ambush. I therefore find that the preliminary objection was properly taken out. We now move to whether the said preliminary objection has merit.
The Defendant contended that this Honourable Court lacks jurisdiction to hear and determine this matter, relying on Article 162(2) and (3) of the Constitution and Section 13 of the Environment and Land Court Act. It was argued that the dispute herein relates to the terms and termination of a sublease, a contract granting enforceable interests in land, and therefore falls within the jurisdiction of the Environment and Land Court (ELC).
In contrast, the Plaintiff maintained that this suit concerns breach of contract, not ownership, use, or occupation of land. The prayers in the plaint are for recovery of rent and damages for breach of contract following the Defendant’s premature termination of the sublease. Such a claim falls squarely within the civil jurisdiction of the High Court.
The Plaintiff relied on Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR, where the Court of Appeal held that collection of dues and rents falls within the civil jurisdiction of the High Court and not the ELC.
The Plaintiff also cited Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), where the Supreme Court held that unilateral termination of a lease amounts to breach of contract, the remedy for which is damages—a matter within the jurisdiction of the High Court.
Accordingly, I find that this court has jurisdiction to hear and determine this suit.
Turning to whether the Plaintiff is entitled to the orders sought, the main contention is that the Defendant terminated the sublease prematurely. The Defendant maintains that it gave a three-month notice, which it deems lawful.
Clause 39.1 of the Sub-Lease provides that the lessee may only terminate the agreement after 66 months from the commencement date and upon giving six months’ written notice. The Sub-Lease commenced on 3rd June 2022; therefore, the earliest lawful termination date would be 3rd December 2027, preceded by six months’ notice.
The Defendant admits to having issued only a three-month notice. This admission amounts to breach of the sublease. The purported termination was premature and in violation of Clause 39.1.
In these circumstances, the Plaintiff has established a prima facie case warranting injunctive relief. Further, the Plaintiff has demonstrated the likelihood of irreparable loss should the Defendant vacate and remove its goods, rendering any eventual decree nugatory. This averment was not controverted by the Defendant. In the authorities cited by the defendant there was no termination clause, but in the instant case, the terms and how to comply were well articulated. The defendants own pleadings also reference the financial constraints and therefore the two grounds in the Cassman Browm case were met.
However, I note that the underlying claim is essentially monetary. Like a failed marriage, it may not be feasible to compel unwilling parties to remain bound. The dispute may therefore be best resolved by damages. To safeguard both parties’ interests, and on a balance of convenience I direct that the Plaintiff deposit half of the amounts claimed—namely Kshs. 20,236,236.25 (half rent) and Kshs. 2,725,922.50 (half service charge)—into a joint interest-earning account held in the joint names of counsel for both parties at a mutually agreed bank within thirty (30) days of this ruling.
Upon compliance, the interim orders shall stand discharged.
Costs shall be in the cause.
Ruling delivered, dated, and signed in Open Court/Microsoft Teams this 7 th day of November 2025.
HON. LADY JUSTICE WENDY K. MICHENI
JUDGE
In the presence of:
MR MWAKADIMA FOR THE PLAINFIFF/ APPLICANT
MR WAMAE FOR THE DEFENDANT RESPONDENT
MS BEBORA COURT ASSISTANT
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The Plaintiff filed this suit contemporaneously with an application dated 1st October 2025 seeking the following orders:
1. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued to restrain the Defendant from prematurely terminating the Sub-Lease Agreement dated 24th January 2022 and registered on 22nd April 2022 between the Plaintiff and the Defendant, before the arrival of the period permissible for termination of the Sub-Lease.
2. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued to restrain the Defendant, its agents, directors, employees, officers, or any other person acting on its behalf from vacating the leased premises identified as Shops Nos. F.5, F.6, and F.7 together with the adjoining passage measuring approximately 949.41 square metres on the first floor of the Defendant’s mall known as Likoni Mall erected on Title Number MOMBASA/BLOCK XLVIII/157.
3. That costs of this application be paid by the Defendant.
Upon the matter coming up for hearing of the said application, this Honourable Court directed the parties to canvass both the application and the preliminary objection by way of written submissions.
The Defendant began by contending that the Plaintiff, without leave of the court, had proceeded to file an Amended Plaint contrary to the principles enunciated by the Supreme Court in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), which held that a party cannot amend pleadings once jurisdiction has been contested. The Court, it was argued, has power under Order 2 Rule 15 of the Civil Procedure Rules, 2010 to strike out such an amended pleading suo moto.
In response, the Plaintiff argued that Order 8 Rule 1 of the Civil Procedure Rules allows a party, without leave of the court, to amend any pleading once at any time before pleadings are closed. Order 2 Rule 13 provides that pleadings close fourteen days after service of the reply to defence, or, where there is no reply, fourteen days after service of the defence itself. The Plaintiff submitted that at the time it filed its Amended Plaint, pleadings had not closed because the Defendant had not yet filed a defence and still has not done so. Further, it was argued that an amended plaint can only be challenged through a formal application, not through written submissions from the bar.
I agree with the Plaintiff that pleadings had not closed and, hence, the objection is not merited.
The next issue is whether the Defendant’s preliminary objection was properly raised.
The Plaintiff argued that the preliminary objection was not properly taken. It is now well settled that a party seeking to challenge the propriety of a suit must first do so in a statement of defence before raising the challenge by way of a preliminary objection. This principle has been affirmed in several decisions, including the Court of Appeal decision in Stephen Onyango Achola & another v Edward Hongo Sule & another [2004] eKLR, where it was held that a party who fails to plead limitation in its defence cannot raise it as a preliminary objection.
Similarly, in Unilever Tea Kenya Limited v Andrew Cheruiyot Rotich & 3 others [2020] eKLR, Justice A.K. Kaniaru held that the usual procedure when raising a point of law that may dispose of a suit before trial is first to file a defence in which the point is pleaded.
In National Bank of Kenya v Data Solve Limited & 2 others [2017] eKLR, Tuiyott J. (as he then was) reaffirmed that a party cannot rely on certain defences unless specifically pleaded, including limitation, fraud, or illegality.
The Plaintiff therefore submitted that the Defendant’s objection to this court’s jurisdiction ought to have been pleaded in a statement of defence before being raised as a preliminary objection. The Defendant did not file a defence before filing the preliminary objection and has not done so to date. Without such a defence, the issue has not been properly brought before this court, and the Defendant is disentitled from raising it.
The Plaintiff/Applicant had earlier argued that no defence has been filed and the pleadings are not closed. Can they equally argue that the preliminary objection must be raised in the defence? I note that in all the cited authorities, defences had been filed, and the courts were considering complete pleadings at judgment stage. The concern there was avoidance of trial by ambush. I therefore find that the preliminary objection was properly taken out. We now move to whether the said preliminary objection has merit.
The Defendant contended that this Honourable Court lacks jurisdiction to hear and determine this matter, relying on Article 162(2) and (3) of the Constitution and Section 13 of the Environment and Land Court Act. It was argued that the dispute herein relates to the terms and termination of a sublease, a contract granting enforceable interests in land, and therefore falls within the jurisdiction of the Environment and Land Court (ELC).
In contrast, the Plaintiff maintained that this suit concerns breach of contract, not ownership, use, or occupation of land. The prayers in the plaint are for recovery of rent and damages for breach of contract following the Defendant’s premature termination of the sublease. Such a claim falls squarely within the civil jurisdiction of the High Court.
The Plaintiff relied on Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR, where the Court of Appeal held that collection of dues and rents falls within the civil jurisdiction of the High Court and not the ELC.
The Plaintiff also cited Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), where the Supreme Court held that unilateral termination of a lease amounts to breach of contract, the remedy for which is damages—a matter within the jurisdiction of the High Court.
Accordingly, I find that this court has jurisdiction to hear and determine this suit.
Turning to whether the Plaintiff is entitled to the orders sought, the main contention is that the Defendant terminated the sublease prematurely. The Defendant maintains that it gave a three-month notice, which it deems lawful.
Clause 39.1 of the Sub-Lease provides that the lessee may only terminate the agreement after 66 months from the commencement date and upon giving six months’ written notice. The Sub-Lease commenced on 3rd June 2022; therefore, the earliest lawful termination date would be 3rd December 2027, preceded by six months’ notice.
The Defendant admits to having issued only a three-month notice. This admission amounts to breach of the sublease. The purported termination was premature and in violation of Clause 39.1.
In these circumstances, the Plaintiff has established a prima facie case warranting injunctive relief. Further, the Plaintiff has demonstrated the likelihood of irreparable loss should the Defendant vacate and remove its goods, rendering any eventual decree nugatory. This averment was not controverted by the Defendant. In the authorities cited by the defendant there was no termination clause, but in the instant case, the terms and how to comply were well articulated. The defendants own pleadings also reference the financial constraints and therefore the two grounds in the Cassman Browm case were met.
However, I note that the underlying claim is essentially monetary. Like a failed marriage, it may not be feasible to compel unwilling parties to remain bound. The dispute may therefore be best resolved by damages. To safeguard both parties’ interests, and on a balance of convenience I direct that the Plaintiff deposit half of the amounts claimed—namely Kshs. 20,236,236.25 (half rent) and Kshs. 2,725,922.50 (half service charge)—into a joint interest-earning account held in the joint names of counsel for both parties at a mutually agreed bank within thirty (30) days of this ruling.
Upon compliance, the interim orders shall stand discharged.
Costs shall be in the cause.
Ruling delivered, dated, and signed in Open Court/Microsoft Teams this 7 th day of November 2025.
HON. LADY JUSTICE WENDY K. MICHENI
JUDGE
In the presence of:
MR MWAKADIMA FOR THE PLAINFIFF/ APPLICANT
MR WAMAE FOR THE DEFENDANT RESPONDENT
MS BEBORA COURT ASSISTANT
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