1. This Ruling arises out of Notice of Preliminary Objection dated 29th April, 2026. It challenges the legal capacity of the Defendant to be sued herein.
Background Facts
2. The Plaintiff instituted this action against the Defendant BONUS TRANSPORT LIMITED. This is by way of a Plaint dated 21st April 2026 which sought the following reliefs;
a.) The sum of KES. 106,995,848.28 being the outstanding debt due under the Fuel Supply Agreement dated 1st February 2026;
b.) Interest on (a) above at the rate of 13% per annum from the respective due dates until payment in full;
c.) An order for realisation of the securities (the Sixteen post-dated cheques and the motor vehicles KDD 340D, KDC 314Z and KDE 340C), to be applied towards satisfaction of the outstanding debt and any accrued interest;
d.) An order directing all further and future payments due to the Defendant for fuel supplied by the Plaintiff to be deposited in a 4 joint account of the Plaintiff and the Defendant at a commercial bank of their election and to be appropriated between the parties as per the Agreement;
e.) Costs of the suit on a full indemnity basis and interest thereon at court rates; and
f.) Any further or alternative orders that this Honourable Court may deem just and equitable in the circumstances of the case.
3. The Defendant entered an appearance. It filed Ground of Opposition dated 29th April, 2026 and a Replying Affidavit of KIBERENGE SERONEY sworn on 11th May, 2026.
4. The Defendant also filed a Notice of Preliminary Objections dated 29th April, 2026. It raised the following grounds;
TAKE NOTICE that Counsel for the Defendant herein, Bonus Transport Limited, shall at the first hearing of the Applicant’s/Plaintiff’s Notice of Motion Application filed under a Certificate of Urgency and dated 21st April 2026, raise a Preliminary Objection on points of law and on the following specific grounds:
1.) THAT the Applicant’s/Plaintiff’s Plaint dated 21st April 2026 and the accompanying pleadings, the Notice of Motion Application filed under a Certificate of Urgency all dated 21st April 2026, and the proceedings herein in entirety are bad in law, a legal nullity, void ab initio, fatally & incurably defective, incompetent and misconceived proceedings herein. and ought to be struck out forthwith as the Defendant herein is bereft of the requisite legal capacity to sue or be sued including sustaining this suit contrary to Order 4 Rule 4 of the Civil Procedure (Amendment) Rules, 2020, Laws of Kenya.
2.) THAT the Defendant IS NOT a natural person, a registered form of business association and or a juristic person within the meaning and import of Part II (Division 1 & 2 being Sections 5 to 19) of the Companies Act, No. 17 of 2015, Laws of Kenya and as such is devoid of any legal capacity to sue, be sued and or enter into any contractual agreements.
3.) THAT the Defendant is a non-existent, unincorporated and or unregistered entity within the eyes of the law and therefore cannot competently sustain the proceedings herein in lieu of legal capacity.
4.) THAT on account of the foregoing, the suit and the proceedings herein instituted vide the Plaint dated 21st April 2026 and the Notice of Motion Application filed under a Certificate of Urgency equally dated 21st April 2026, are incompetent, misconceived, fatally & incurably defective, void ab initio and bad in law having been instituted against a nonexistent /unregistered / unincorporated entity that is not known in the eyes of the law and consequently, ought to be struck out with costs.
5. The Court issued directions that the Plaintiff’s application by way of Notice of Motion dated 21st April, 2026 do abide the outcome of the hearing of the Notice of Preliminary Objection, the subject of this Ruling.
6. The Court issued strict timelines for the filing of written submissions. Only Mr. Wageche complied by filing written submissions dated 15th May, 2026. Though they were filed on 19th May, 2026 which was outside the Three (3) days granted by the Court. This was way out time. The Plaintiff represented by Mr. Limo did not file any submissions. The Court nevertheless granted Miss Cheptanui holding brief for Mr. Limo an opportunity to respond orally to the submissions by the Defendant.
I ssues for Determination
7. The Court has considered the Notice of Preliminary Objection, the submissions by the Defendant and oral highlights by Counsel for the parties. The Court frames a single issue for determination;
a) Whether the Defendant as sued exists in law and hence is not capable of being sued.
Analysis
8. The leading case in preliminary objections is Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. The Court of Appeal described a Preliminary Objection as follows;
“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.”
And Sir Charles Newbold P added (also at p. 701):
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
9. The question before the Court is whether the Defendant BONUS TRANSPORT LIMITED as described exists in law and fact. Therefore, is this a pure point of law that can dispose of this suit? Can this so-called pure point of law be discerned from the pleadings?
10. The Court states so because the minute the Court has to start delving into evidence, the point becomes factual. It ceases to be a pure point of law.
11. The applicant relies on the Replying Affidavit which states as follows;
“8. THAT however, in an effort to confirm the said position, I am aware that the Defendant's advocates on record wrote to the Registrar of Companies, Business Registration Services requesting for the registration/incorporation 9. status of "Bonus Transport Limited", being the Defendant herein. (Annexed and produced herewith is a copy of the Letter dated 4th May 2026 to the Registrar of Companies, Business Registration Services produced and marked as KS-1)
9. THAT I am further aware that vide letter dated 5th May 2026, the Registrar of Companies, Business Registration Services, wrote vide letter dated 5th May 2026 and Reference No. BRS/CR/GC/2/VOL.1/248 whereby the Registrar unequivocally confirmed that the name “Bonus Transport Limited” does not appear in the index of registered entities under the custody of the Registrar of Companies. (Annexed and produced herewith is a copy of the Letter dated 5th May 2026 from the Registrar of Companies, Business Registration Services produced and marked as KS-2)
10. THAT under the circumstances, and in light of the confirmation by the Registrar of Companies, the Defendant herein is therefore not a registered limited liability company or a business name.
11. THAT further, it is equally not certain what other form of business association/ registration/incorporation within the meaning and import of the law, the Defendant/Respondent is, as it is not a natural person, a registered trust, foundation, partnership, religious organization, educational body, savings and credit cooperative society (SACCO), professional body, or any other form of business association now that it has already been confirmed that it is not a limited liability company and or a business name registered in whatever form.”
12. Clearly the Defendant had to write to the Registrar of Companies to get evidence by way of a letter dated 5th May 2026 and Reference No. BRS/CR/GC/2/VOL.1/248. It is this letter that is introduced as proof that the Defendant is unincorporated. Without such a letter the Preliminary Objection cannot stand. Once a Court has to entertain an Affidavit during the hearing of a Preliminary Objection, it moves into the realm of facts and evidence. Hence this ceases to be a pure point of law.
13. The Court has perused the authorities cited by Counsel for the Defendant. They support cases where the Plaint is filed by a party lacking legal capacity. Such a suit would be defective. This is not so in this case. There is no challenge as to the legal capacity of the Plaintiff. Rather it is as to the capacity of the Defendant. defendant.
14. The challenge to the legal capacity by the Defendant may be meritorious, however it cannot be raised by way of a Notice of Preliminary Objection. It would require factual evidence. It then ceased to be a pure point of law. The Plaintiff’s Counsel response is that they wish to amend the Plaint to cure the misdescription of the Defendant. That the suit cannot be struck out if it can be cured by way of amendment. The Court agrees that the suit can be amended to correct any errors including errors as to the description of the Defendant. The Court notes that no Statement of Defence has been filed yet. So, the pleadings have not closed. Leave to amend is not necessary at this juncture. It remains to be seen if the Plaint will be amended.
15. The Preliminary Objection is therefore overruled.
16. As to costs, the Court notes that the Plaintiff did not file any submissions despite being directed to do so. Whereas cost ordinarily follow the event, they lie at the discretion of this Court. Failure to comply with Court orders and directions may disentitle a party to costs. There will be no orders as to costs.
Determination
17. The Defendant’s Notice of Preliminary Objection dated 21st April, 2026 is overruled and HEREBY struck out.
18. There will be no orders as to costs.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 28TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Cheptanui for the Plaintiff.
Mr. Wageche for the Defendant.
Ms. Susan Nzioka - Court Assistant.
Background Facts
2. The Plaintiff instituted this action against the Defendant BONUS TRANSPORT LIMITED. This is by way of a Plaint dated 21st April 2026 which sought the following reliefs;
a.) The sum of KES. 106,995,848.28 being the outstanding debt due under the Fuel Supply Agreement dated 1st February 2026;
b.) Interest on (a) above at the rate of 13% per annum from the respective due dates until payment in full;
c.) An order for realisation of the securities (the Sixteen post-dated cheques and the motor vehicles KDD 340D, KDC 314Z and KDE 340C), to be applied towards satisfaction of the outstanding debt and any accrued interest;
d.) An order directing all further and future payments due to the Defendant for fuel supplied by the Plaintiff to be deposited in a 4 joint account of the Plaintiff and the Defendant at a commercial bank of their election and to be appropriated between the parties as per the Agreement;
e.) Costs of the suit on a full indemnity basis and interest thereon at court rates; and
f.) Any further or alternative orders that this Honourable Court may deem just and equitable in the circumstances of the case.
3. The Defendant entered an appearance. It filed Ground of Opposition dated 29th April, 2026 and a Replying Affidavit of KIBERENGE SERONEY sworn on 11th May, 2026.
4. The Defendant also filed a Notice of Preliminary Objections dated 29th April, 2026. It raised the following grounds;
TAKE NOTICE that Counsel for the Defendant herein, Bonus Transport Limited, shall at the first hearing of the Applicant’s/Plaintiff’s Notice of Motion Application filed under a Certificate of Urgency and dated 21st April 2026, raise a Preliminary Objection on points of law and on the following specific grounds:
1.) THAT the Applicant’s/Plaintiff’s Plaint dated 21st April 2026 and the accompanying pleadings, the Notice of Motion Application filed under a Certificate of Urgency all dated 21st April 2026, and the proceedings herein in entirety are bad in law, a legal nullity, void ab initio, fatally & incurably defective, incompetent and misconceived proceedings herein. and ought to be struck out forthwith as the Defendant herein is bereft of the requisite legal capacity to sue or be sued including sustaining this suit contrary to Order 4 Rule 4 of the Civil Procedure (Amendment) Rules, 2020, Laws of Kenya.
2.) THAT the Defendant IS NOT a natural person, a registered form of business association and or a juristic person within the meaning and import of Part II (Division 1 & 2 being Sections 5 to 19) of the Companies Act, No. 17 of 2015, Laws of Kenya and as such is devoid of any legal capacity to sue, be sued and or enter into any contractual agreements.
3.) THAT the Defendant is a non-existent, unincorporated and or unregistered entity within the eyes of the law and therefore cannot competently sustain the proceedings herein in lieu of legal capacity.
4.) THAT on account of the foregoing, the suit and the proceedings herein instituted vide the Plaint dated 21st April 2026 and the Notice of Motion Application filed under a Certificate of Urgency equally dated 21st April 2026, are incompetent, misconceived, fatally & incurably defective, void ab initio and bad in law having been instituted against a nonexistent /unregistered / unincorporated entity that is not known in the eyes of the law and consequently, ought to be struck out with costs.
5. The Court issued directions that the Plaintiff’s application by way of Notice of Motion dated 21st April, 2026 do abide the outcome of the hearing of the Notice of Preliminary Objection, the subject of this Ruling.
6. The Court issued strict timelines for the filing of written submissions. Only Mr. Wageche complied by filing written submissions dated 15th May, 2026. Though they were filed on 19th May, 2026 which was outside the Three (3) days granted by the Court. This was way out time. The Plaintiff represented by Mr. Limo did not file any submissions. The Court nevertheless granted Miss Cheptanui holding brief for Mr. Limo an opportunity to respond orally to the submissions by the Defendant.
I ssues for Determination
7. The Court has considered the Notice of Preliminary Objection, the submissions by the Defendant and oral highlights by Counsel for the parties. The Court frames a single issue for determination;
a) Whether the Defendant as sued exists in law and hence is not capable of being sued.
Analysis
8. The leading case in preliminary objections is Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. The Court of Appeal described a Preliminary Objection as follows;
“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.”
And Sir Charles Newbold P added (also at p. 701):
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
9. The question before the Court is whether the Defendant BONUS TRANSPORT LIMITED as described exists in law and fact. Therefore, is this a pure point of law that can dispose of this suit? Can this so-called pure point of law be discerned from the pleadings?
10. The Court states so because the minute the Court has to start delving into evidence, the point becomes factual. It ceases to be a pure point of law.
11. The applicant relies on the Replying Affidavit which states as follows;
“8. THAT however, in an effort to confirm the said position, I am aware that the Defendant's advocates on record wrote to the Registrar of Companies, Business Registration Services requesting for the registration/incorporation 9. status of "Bonus Transport Limited", being the Defendant herein. (Annexed and produced herewith is a copy of the Letter dated 4th May 2026 to the Registrar of Companies, Business Registration Services produced and marked as KS-1)
9. THAT I am further aware that vide letter dated 5th May 2026, the Registrar of Companies, Business Registration Services, wrote vide letter dated 5th May 2026 and Reference No. BRS/CR/GC/2/VOL.1/248 whereby the Registrar unequivocally confirmed that the name “Bonus Transport Limited” does not appear in the index of registered entities under the custody of the Registrar of Companies. (Annexed and produced herewith is a copy of the Letter dated 5th May 2026 from the Registrar of Companies, Business Registration Services produced and marked as KS-2)
10. THAT under the circumstances, and in light of the confirmation by the Registrar of Companies, the Defendant herein is therefore not a registered limited liability company or a business name.
11. THAT further, it is equally not certain what other form of business association/ registration/incorporation within the meaning and import of the law, the Defendant/Respondent is, as it is not a natural person, a registered trust, foundation, partnership, religious organization, educational body, savings and credit cooperative society (SACCO), professional body, or any other form of business association now that it has already been confirmed that it is not a limited liability company and or a business name registered in whatever form.”
12. Clearly the Defendant had to write to the Registrar of Companies to get evidence by way of a letter dated 5th May 2026 and Reference No. BRS/CR/GC/2/VOL.1/248. It is this letter that is introduced as proof that the Defendant is unincorporated. Without such a letter the Preliminary Objection cannot stand. Once a Court has to entertain an Affidavit during the hearing of a Preliminary Objection, it moves into the realm of facts and evidence. Hence this ceases to be a pure point of law.
13. The Court has perused the authorities cited by Counsel for the Defendant. They support cases where the Plaint is filed by a party lacking legal capacity. Such a suit would be defective. This is not so in this case. There is no challenge as to the legal capacity of the Plaintiff. Rather it is as to the capacity of the Defendant. defendant.
14. The challenge to the legal capacity by the Defendant may be meritorious, however it cannot be raised by way of a Notice of Preliminary Objection. It would require factual evidence. It then ceased to be a pure point of law. The Plaintiff’s Counsel response is that they wish to amend the Plaint to cure the misdescription of the Defendant. That the suit cannot be struck out if it can be cured by way of amendment. The Court agrees that the suit can be amended to correct any errors including errors as to the description of the Defendant. The Court notes that no Statement of Defence has been filed yet. So, the pleadings have not closed. Leave to amend is not necessary at this juncture. It remains to be seen if the Plaint will be amended.
15. The Preliminary Objection is therefore overruled.
16. As to costs, the Court notes that the Plaintiff did not file any submissions despite being directed to do so. Whereas cost ordinarily follow the event, they lie at the discretion of this Court. Failure to comply with Court orders and directions may disentitle a party to costs. There will be no orders as to costs.
Determination
17. The Defendant’s Notice of Preliminary Objection dated 21st April, 2026 is overruled and HEREBY struck out.
18. There will be no orders as to costs.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 28TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Cheptanui for the Plaintiff.
Mr. Wageche for the Defendant.
Ms. Susan Nzioka - Court Assistant.