1. This ruling concerns the Notice of Preliminary Objection dated 20th February 2026 filed by the 1st Defendant seeking to strike out the Plaint dated 13th January 2026.
2. The objection is premised on the grounds that the suit is premature for failure to comply with the dispute resolution mechanism under Clause 23 of the Management Agreement dated 19th April 2023, that the Plaintiffs lack locus standi for want of a proper company resolution under Order 4 Rule 1(4) of the Civil Procedure Rules, that the suit is defective and an abuse of the court process, and that this Court lacks jurisdiction.
3. The Court directed that the Preliminary Objection be canvassed by way of written submissions. The record shows that the 1st Defendant filed submissions dated 24th April 2026 in support of the Notice of Preliminary Objection but the Plaintiffs did not file any submissions.
4. The 1st Defendant relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, David Karobia Kiiru v Charles Nderitu Gitoi & another (2018) eKLR, John Musakali v Speaker County of Bungoma & 4 others (2015) eKLR and Oraro v Mbaja (2005) KLR 141 on the nature of a preliminary objection.
5. On the doctrine of exhaustion and alternative dispute resolution, reliance was placed on Njoroge v Kenya Power & Lighting Company (2023) KEHC 1924 (KLR), William Odhiambo Ramogi & 3 others v Attorney General & 4 others (2020) eKLR, Speaker of the National Assembly v Karume (1992) KLR 21 and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others (2015) eKLR.
6. Further reliance was placed on Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR, National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another (2001) eKLR, Ngwatu v Tavevo Water & Sewerage Company Ltd & another (2023) KEELRC 1302 (KLR), 748 Air Services Limited v Theuri Munyi (2017) eKLR, Kenya Alliance Insurance Co Ltd v Annbel Muthoki Muteti, and Blue Limited v Jaribu Credit Traders Limited (HCCC No. 157 of 2008).
7. On prematurity and mediation clauses, reliance was placed on Duncan K. Wachira v Muringa Holdings Limited (2013) KEHC 5735 (KLR). On locus standi, reliance was placed on Directline Assurance Company Limited v Tomson Ondimu (2019) KEHC 8646 (KLR) and East African Portland Cement Ltd v Capital Markets Authority & 4 others (2014) eKLR.
8. The issue for determination is whether the Preliminary Objection raises pure points of law capable of disposing of the suit.
9. The law on preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the former East African Court of Appeal held that a preliminary objection consists of a pure point of law which, if successfully argued, may dispose of the suit without the need for ascertainment of facts. The Court further emphasized that a preliminary objection cannot properly arise where facts are contested or where the Court is called upon to exercise discretion. That principle was reaffirmed in David Karobia Kiiru v Charles Nderitu Gitoi & another [2018] eKLR where the Court stated that a valid preliminary objection must raise a pure point of law argued on the assumption that all pleaded facts are correct and must not require factual inquiry. Similarly, in John Musakali v Speaker County of Bungoma & 4 others [2015] eKLR, the Court observed that once facts remain disputed or require ascertainment through evidence, the matter ceases to qualify as a proper preliminary objection. The same position was echoed in Oraro v Mbaja [2005] KLR 141 where the Court cautioned that a preliminary objection must not be blurred with contested factual matters requiring proof through evidence.
10. The objection on prematurity is anchored on Clause 23 of the Management Agreement dated 19th April 2023 which provides for negotiation, mediation and arbitration before resort to litigation. The 1st Defendant relied on the doctrine of exhaustion as discussed in Njoroge v Kenya Power & Lighting Company (Constitutional Petition E533 of 2021) [2023] KEHC 1924 (KLR), William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, Speaker of the National Assembly v Karume [1992] KLR 21 and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR where the courts emphasized that where a dispute resolution mechanism exists outside the courts, parties ought to exhaust the same before invoking judicial intervention.
11. However, unlike in those authorities where the existence and applicability of the dispute resolution mechanisms were either admitted or apparent, the present dispute raises contested questions regarding whether Clause 23 applies to the claims before the Court, whether the stipulated mechanisms were invoked or attempted, and whether circumstances exist justifying departure from those mechanisms. Determination of those questions would require the Court to interrogate facts and examine the parties’ conduct and contractual relationship. In the circumstances, the objection does not present a pure point of law capable of determination at the preliminary stage.
12. The 1st Defendant further relied on Duncan K. Wachira v Muringa Holdings Limited [2013] KEHC 5735 (KLR) where the Court enforced a mandatory mediation clause and held that proceedings commenced before compliance with the agreed dispute resolution mechanism were premature. The Court has considered that authority. However, unlike the circumstances in that case, the applicability, operation and extent of compliance with Clause 23 of the Management Agreement dated 19th April 2023 remain disputed in the present matter. The Court cannot conclusively determine whether the dispute resolution clause operates to defer recourse to the Court without first interrogating contested factual matters. Such inquiry falls outside the scope of a proper preliminary objection.
13. Similarly, the objection that the Plaintiffs lack locus standi for want of a company resolution under Order 4 Rule 1(4) of the Civil Procedure Rules raises a question as to the existence or otherwise of such authority. The 1st Defendant relied on Directline Assurance Company Limited v Tomson Ondimu [2019] KEHC 8646 (KLR) and East African Portland Cement Ltd v Capital Markets Authority & 4 others [2014] eKLR where the courts emphasized the importance of proper corporate authorization before institution of proceedings. However, whether such authority exists, whether it was subsequently ratified, and the legal effect of any omission are matters that would require evidentiary interrogation and cannot be conclusively determined in limine without factual inquiry. Consequently, the issue does not fall within the scope of a proper preliminary objection.
14. It is trite that the issue of jurisdiction is ordinarily capable of determination as a preliminary objection. The 1st Defendant relied on authorities including National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR, Ngwatu v Tavevo Water & Sewerage Company Ltd & another (Cause 97 of 2022) [2023] KEELRC 1302 (KLR), 748 Air Services Limited v Theuri Munyi [2017] eKLR and Kenya Alliance Insurance Co Ltd v Annbel Muthoki Muteti [2020] eKLR for the proposition that courts ought to give effect to contractual dispute resolution clauses and that parties are generally bound by their agreements.
15. This Court agrees with that principle but before such clauses may operate to defer or limit recourse to the Court, the Court must first determine whether the clause is applicable to the dispute before it and whether the contractual mechanisms contemplated therein were invoked or complied with. Those questions are not apparent on the face of the pleadings and would necessitate inquiry into contested facts and the surrounding contractual context. Consequently, the jurisdictional challenge herein is not amenable to determination as a pure point of law at the preliminary stage.
9. The allegation that the suit is defective and an abuse of the court process is likewise fact-dependent and cannot be determined without a proper factual foundation.
10. In the circumstances, I find that the Preliminary Objection invites the Court to undertake a factual inquiry and to exercise judicial discretion, which is contrary to the principles governing preliminary objections.
11. Consequently, and for the foregoing reasons, the Notice of Preliminary Objection dated 20th February 2026 is hereby found to be improperly taken and lacking in merit and is accordingly dismissed. The suit shall proceed to hearing on its merits. Costs of the Preliminary Objection are awarded to the Plaintiffs.
2. The objection is premised on the grounds that the suit is premature for failure to comply with the dispute resolution mechanism under Clause 23 of the Management Agreement dated 19th April 2023, that the Plaintiffs lack locus standi for want of a proper company resolution under Order 4 Rule 1(4) of the Civil Procedure Rules, that the suit is defective and an abuse of the court process, and that this Court lacks jurisdiction.
3. The Court directed that the Preliminary Objection be canvassed by way of written submissions. The record shows that the 1st Defendant filed submissions dated 24th April 2026 in support of the Notice of Preliminary Objection but the Plaintiffs did not file any submissions.
4. The 1st Defendant relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, David Karobia Kiiru v Charles Nderitu Gitoi & another (2018) eKLR, John Musakali v Speaker County of Bungoma & 4 others (2015) eKLR and Oraro v Mbaja (2005) KLR 141 on the nature of a preliminary objection.
5. On the doctrine of exhaustion and alternative dispute resolution, reliance was placed on Njoroge v Kenya Power & Lighting Company (2023) KEHC 1924 (KLR), William Odhiambo Ramogi & 3 others v Attorney General & 4 others (2020) eKLR, Speaker of the National Assembly v Karume (1992) KLR 21 and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others (2015) eKLR.
6. Further reliance was placed on Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR, National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another (2001) eKLR, Ngwatu v Tavevo Water & Sewerage Company Ltd & another (2023) KEELRC 1302 (KLR), 748 Air Services Limited v Theuri Munyi (2017) eKLR, Kenya Alliance Insurance Co Ltd v Annbel Muthoki Muteti, and Blue Limited v Jaribu Credit Traders Limited (HCCC No. 157 of 2008).
7. On prematurity and mediation clauses, reliance was placed on Duncan K. Wachira v Muringa Holdings Limited (2013) KEHC 5735 (KLR). On locus standi, reliance was placed on Directline Assurance Company Limited v Tomson Ondimu (2019) KEHC 8646 (KLR) and East African Portland Cement Ltd v Capital Markets Authority & 4 others (2014) eKLR.
8. The issue for determination is whether the Preliminary Objection raises pure points of law capable of disposing of the suit.
9. The law on preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the former East African Court of Appeal held that a preliminary objection consists of a pure point of law which, if successfully argued, may dispose of the suit without the need for ascertainment of facts. The Court further emphasized that a preliminary objection cannot properly arise where facts are contested or where the Court is called upon to exercise discretion. That principle was reaffirmed in David Karobia Kiiru v Charles Nderitu Gitoi & another [2018] eKLR where the Court stated that a valid preliminary objection must raise a pure point of law argued on the assumption that all pleaded facts are correct and must not require factual inquiry. Similarly, in John Musakali v Speaker County of Bungoma & 4 others [2015] eKLR, the Court observed that once facts remain disputed or require ascertainment through evidence, the matter ceases to qualify as a proper preliminary objection. The same position was echoed in Oraro v Mbaja [2005] KLR 141 where the Court cautioned that a preliminary objection must not be blurred with contested factual matters requiring proof through evidence.
10. The objection on prematurity is anchored on Clause 23 of the Management Agreement dated 19th April 2023 which provides for negotiation, mediation and arbitration before resort to litigation. The 1st Defendant relied on the doctrine of exhaustion as discussed in Njoroge v Kenya Power & Lighting Company (Constitutional Petition E533 of 2021) [2023] KEHC 1924 (KLR), William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, Speaker of the National Assembly v Karume [1992] KLR 21 and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR where the courts emphasized that where a dispute resolution mechanism exists outside the courts, parties ought to exhaust the same before invoking judicial intervention.
11. However, unlike in those authorities where the existence and applicability of the dispute resolution mechanisms were either admitted or apparent, the present dispute raises contested questions regarding whether Clause 23 applies to the claims before the Court, whether the stipulated mechanisms were invoked or attempted, and whether circumstances exist justifying departure from those mechanisms. Determination of those questions would require the Court to interrogate facts and examine the parties’ conduct and contractual relationship. In the circumstances, the objection does not present a pure point of law capable of determination at the preliminary stage.
12. The 1st Defendant further relied on Duncan K. Wachira v Muringa Holdings Limited [2013] KEHC 5735 (KLR) where the Court enforced a mandatory mediation clause and held that proceedings commenced before compliance with the agreed dispute resolution mechanism were premature. The Court has considered that authority. However, unlike the circumstances in that case, the applicability, operation and extent of compliance with Clause 23 of the Management Agreement dated 19th April 2023 remain disputed in the present matter. The Court cannot conclusively determine whether the dispute resolution clause operates to defer recourse to the Court without first interrogating contested factual matters. Such inquiry falls outside the scope of a proper preliminary objection.
13. Similarly, the objection that the Plaintiffs lack locus standi for want of a company resolution under Order 4 Rule 1(4) of the Civil Procedure Rules raises a question as to the existence or otherwise of such authority. The 1st Defendant relied on Directline Assurance Company Limited v Tomson Ondimu [2019] KEHC 8646 (KLR) and East African Portland Cement Ltd v Capital Markets Authority & 4 others [2014] eKLR where the courts emphasized the importance of proper corporate authorization before institution of proceedings. However, whether such authority exists, whether it was subsequently ratified, and the legal effect of any omission are matters that would require evidentiary interrogation and cannot be conclusively determined in limine without factual inquiry. Consequently, the issue does not fall within the scope of a proper preliminary objection.
14. It is trite that the issue of jurisdiction is ordinarily capable of determination as a preliminary objection. The 1st Defendant relied on authorities including National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR, Ngwatu v Tavevo Water & Sewerage Company Ltd & another (Cause 97 of 2022) [2023] KEELRC 1302 (KLR), 748 Air Services Limited v Theuri Munyi [2017] eKLR and Kenya Alliance Insurance Co Ltd v Annbel Muthoki Muteti [2020] eKLR for the proposition that courts ought to give effect to contractual dispute resolution clauses and that parties are generally bound by their agreements.
15. This Court agrees with that principle but before such clauses may operate to defer or limit recourse to the Court, the Court must first determine whether the clause is applicable to the dispute before it and whether the contractual mechanisms contemplated therein were invoked or complied with. Those questions are not apparent on the face of the pleadings and would necessitate inquiry into contested facts and the surrounding contractual context. Consequently, the jurisdictional challenge herein is not amenable to determination as a pure point of law at the preliminary stage.
9. The allegation that the suit is defective and an abuse of the court process is likewise fact-dependent and cannot be determined without a proper factual foundation.
10. In the circumstances, I find that the Preliminary Objection invites the Court to undertake a factual inquiry and to exercise judicial discretion, which is contrary to the principles governing preliminary objections.
11. Consequently, and for the foregoing reasons, the Notice of Preliminary Objection dated 20th February 2026 is hereby found to be improperly taken and lacking in merit and is accordingly dismissed. The suit shall proceed to hearing on its merits. Costs of the Preliminary Objection are awarded to the Plaintiffs.