1. The Court is called upon to determine two matters arising in these proceedings: first, the Respondent's Preliminary Objection dated 28th May 2026; and second, the Applicants' Notice of Motion dated 14th April 2026.
2. The Applicants' Notice of Motion seeks, principally, orders for amendment of Bill of Lading No. BFKS00792374 and the corresponding cargo manifest relating to a used Mercedes-Benz S-Class, chassis number WDD2221652A170860, so as to substitute Jacob Mwangulukulu as consignee. The Applicants also seek an order restraining the Respondent from interfering with the cargo pending payment of the alleged outstanding balance.
3. The Preliminary Objection challenges the competence of these proceedings on the ground that the Applicants have sought substantive relief through a Miscellaneous Application without first instituting a substantive suit.
4. The Applicants' case is that the 2nd Applicant sold the vehicle to the Respondent for USD 8,870, of which the Respondent paid USD 6,173, leaving a balance of USD 2,697. They contend that the agreement expressly provided that ownership and title would pass only upon payment of the purchase price in full. It is further their case that, due to the unpaid balance, the vehicle remains at the Port of Mombasa and, according to the Applicants, continues to incur storage and related charges and faces the risk of being auctioned or disposed of.
5. The Applicants contend that, following the Respondent's failure to complete payment, they exercised their right under the Sales of Goods Act and the agreement between the parties, to stop the goods in transit and sought to mitigate their loss by identifying another purchaser. They submit that amending the shipping documents is necessary to facilitate the lawful clearance of the vehicle and to avoid further loss.
6. On his part, the Respondent accepts that he entered into the transaction and paid USD 6,173, and accepts that approximately USD 2,697 remains outstanding; he, however, disputes that the balance is due and payable. He explains that previous vehicles selected through the Applicants were cancelled or not shipped, that he incurred delay and financial disruption, that inspection issues arose concerning the subject vehicle, and that he subsequently identified concerns regarding its condition and representations made about it. He therefore declined to proceed and requested cancellation and/or refund.
7. Consequently, the Respondent argues that he continues to have financial and legal interest in the vehicle arising from the substantial payments made and opposes the Applicants' attempt to change the consignee or dispose of the vehicle without addressing his interest.
8. In support of its Preliminary Objection, the Respondent asserts that this Court lacks jurisdiction to grant substantive and permanent reliefs sought in the absence of a substantive suit, contrary to the express provisions of Order 3 Rule 1 of the Civil Procedure Rules.
9. The 1st and 2nd Interested Parties (Kenya Revenue Authority -KRA and Kenya Bureau of Standards – KEBS) filed their respective responses to the application. KRA’s Counsel of record, Ms. Lilian Nyaringita swore an affidavit on 28th May 2026, and they do not take any sides in the dispute, but warehouse/storage charges will be demanded from the party seeking clearance. KEBS affidavit, sworn by Erick Ochieng on 30th April 2026, also simply asserted KEBS' statutory inspection and standards mandate.
10. The Application was canvassed by written submissions. The Applicant, through Maiyo Linet & Associates, filed three sets of submissions: Submissions dated 18th May 2026 in support of its application; Submissions dated 12th August 2026 on the Respondent’s Preliminary Objection; and further submissions dated the same date. The Respondent, on the other hand, filed submissions dated 31st August 2026, addressing both its Preliminary Objection and the Applicant’s application.
Analysis and Determination
11. Having duly considered the pleadings and the submissions on record, I find the main issues for determination are;
i. Whether the preliminary objection is merited
ii. Whether the Applicant’s application for amendment of the Bill of Lading and Cargo Manifest is merited.
Whether the Preliminary Objection is merited
12. The Respondent’s Preliminary Objection is premised, in substance, on the ground that the Applicant has commenced substantive proceedings by way of a Miscellaneous Application, without filing a plaint or any other prescribed originating process. The Respondent therefore urges the Court to strike out the proceedings with costs.
13. The Applicants oppose the objection, contending that the objection does not meet the threshold set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, since the dispute involves contested questions of fact. They further contend that the Court has jurisdiction to entertain the application and that the procedural form adopted ought not to defeat the substantive dispute. Reliance is placed, among other provisions, on Article 159(2)(d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act.
14. I have considered the Preliminary Objection, the parties' respective submissions and the record. The issue for determination is whether the objection meets the Muskisa Biscuit threshold, and if yes, whether the proceedings, having been commenced by way of a Miscellaneous Application seeking substantive relief without a substantive suit, are competently before the Court.
15. As rightly submitted by the Applicant, the applicable test for a valid preliminary objection remains that set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (supra). A preliminary objection must raise a pure point of law, argued on the assumption that the facts pleaded by the opposing party are correct. It cannot properly be raised where a fact has to be ascertained or where the Court is called upon to exercise judicial discretion.
16. The objection before the Court challenges the competence of the proceedings on the ground that the Applicant has commenced a substantive claim by way of a Miscellaneous Application, without a substantive plaint or other prescribed originating process. This is a question that can be determined from the face of the Court record. It does not require the Court to receive evidence, resolve a dispute of fact or exercise judicial discretion. The relevant facts—the nature of the proceedings and the process by which they were commenced—are matters apparent from the record and are not in dispute.
17. Further, the objection does not invite the Court to determine whether the Applicant's substantive claim is meritorious. It raises a threshold question as to whether there is a competent proceeding before the Court upon which the substantive reliefs sought can be adjudicated. If the objection succeeds, the consequence would be to terminate the proceedings in their present form.
18. I am therefore satisfied that the objection raises a pure question of law, is capable of determination without ascertainment of disputed facts or the exercise of judicial discretion, and, if successful, would dispose of the proceedings. It consequently satisfies the threshold established in Mukisa Biscuit Manufacturing case and is properly before the Court as a preliminary objection.
19. Having so found, I now turn to the substantive question whether the commencement of these proceedings by way of a Miscellaneous Application, in the absence of a plaint or other prescribed originating process, renders the proceedings incompetent.
20. Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by the rules. Order 3 rule 1(1) of the Civil Procedure Rules, 2010 provides that every suit shall be instituted by presenting a plaint to the Court, “or in such other manner as may be prescribed.” The effect of the provision is that a claim seeking adjudication and determination of substantive rights must be commenced in a manner authorised by law.
21. In Scope Telematics International Sales Ltd v Stoic Company Ltd & another [2017] eKLR, the Court of Appeal, considering a stand-alone Notice of Motion seeking substantive relief in the absence of a suit, stated as follows:
“The manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction. Obviously, in overlooking a statutory imperative and the above authorities, the learned Judge cannot be said to have exercised his discretion properly. There can be no other interpretation of Rule 2. The application should have been anchored on a suit.”
22. The Court in Scope Telematics distinguished cases where a miscellaneous application is permissible because no substantive rights are being enforced. The Court, in overturning the decision of the High Court, stated that: -
“The Judge in his determination held that the fact that the application was not anchored on a suit did not render it fatal so as to deny the 1st respondent the right to seek an interim relief. The Judge was of the view that in some instances a party could be allowed to file a miscellaneous application without the basis of a suit where such a party was not seeking to enforce any rights or obligations and where there was no action being enforced or tried like in the present case. The Judge relied on the case of Joseph Kibowen Chemjor v William C. Kisera [2013] eKLR where it was held that in some instances, the court would be asked to exercise its discretion on procedural issues, for example, when a party was seeking leave to institute suit out of time or leave to commence judicial review proceedings. In our view, that authority was inapplicable and clearly distinguishable in the circumstances of this case since it dealt with the filling of a miscellaneous applications, which is a form of initiating a suit that is permitted by the Civil Procedure Act, and the rules made there-under, more so where no procedure is provided. In the present case, a procedure is provided for, which is that the application be mounted upon a suit.”
23. In the present case, the Applicants seek orders directing amendment of the Bill of Lading and cargo manifest, consequential directions to KRA and KPA, and restraint of the Respondent from interfering with the vehicle. These orders are founded on the Applicants’ asserted contractual and proprietary rights and are not merely interlocutory reliefs ancillary to an existing suit. These are, in my view, substantive issues which cannot be raised and finally determined in a claim originated by way of a miscellaneous application.
24. The Applicants’ reliance on Article 159(2)(d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act does not cure the defect. Article 159 is not a substitute for a prescribed originating process, nor can the Court's inherent jurisdiction be invoked to create jurisdiction where the law has prescribed the manner in which the jurisdiction is to be invoked. The Court of Appeal in Scope Telematics made this distinction clear.
25. Having reached the conclusion that the application is incompetent, it therefore becomes otiose to consider the substantive issues raised therein.
26. In the result, I find that the Preliminary Objection dated 28th May 2026 merited. The Notice of Motion dated 14th April 2026 is incompetent and is struck out, with costs to the Respondent.
27. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
2. The Applicants' Notice of Motion seeks, principally, orders for amendment of Bill of Lading No. BFKS00792374 and the corresponding cargo manifest relating to a used Mercedes-Benz S-Class, chassis number WDD2221652A170860, so as to substitute Jacob Mwangulukulu as consignee. The Applicants also seek an order restraining the Respondent from interfering with the cargo pending payment of the alleged outstanding balance.
3. The Preliminary Objection challenges the competence of these proceedings on the ground that the Applicants have sought substantive relief through a Miscellaneous Application without first instituting a substantive suit.
4. The Applicants' case is that the 2nd Applicant sold the vehicle to the Respondent for USD 8,870, of which the Respondent paid USD 6,173, leaving a balance of USD 2,697. They contend that the agreement expressly provided that ownership and title would pass only upon payment of the purchase price in full. It is further their case that, due to the unpaid balance, the vehicle remains at the Port of Mombasa and, according to the Applicants, continues to incur storage and related charges and faces the risk of being auctioned or disposed of.
5. The Applicants contend that, following the Respondent's failure to complete payment, they exercised their right under the Sales of Goods Act and the agreement between the parties, to stop the goods in transit and sought to mitigate their loss by identifying another purchaser. They submit that amending the shipping documents is necessary to facilitate the lawful clearance of the vehicle and to avoid further loss.
6. On his part, the Respondent accepts that he entered into the transaction and paid USD 6,173, and accepts that approximately USD 2,697 remains outstanding; he, however, disputes that the balance is due and payable. He explains that previous vehicles selected through the Applicants were cancelled or not shipped, that he incurred delay and financial disruption, that inspection issues arose concerning the subject vehicle, and that he subsequently identified concerns regarding its condition and representations made about it. He therefore declined to proceed and requested cancellation and/or refund.
7. Consequently, the Respondent argues that he continues to have financial and legal interest in the vehicle arising from the substantial payments made and opposes the Applicants' attempt to change the consignee or dispose of the vehicle without addressing his interest.
8. In support of its Preliminary Objection, the Respondent asserts that this Court lacks jurisdiction to grant substantive and permanent reliefs sought in the absence of a substantive suit, contrary to the express provisions of Order 3 Rule 1 of the Civil Procedure Rules.
9. The 1st and 2nd Interested Parties (Kenya Revenue Authority -KRA and Kenya Bureau of Standards – KEBS) filed their respective responses to the application. KRA’s Counsel of record, Ms. Lilian Nyaringita swore an affidavit on 28th May 2026, and they do not take any sides in the dispute, but warehouse/storage charges will be demanded from the party seeking clearance. KEBS affidavit, sworn by Erick Ochieng on 30th April 2026, also simply asserted KEBS' statutory inspection and standards mandate.
10. The Application was canvassed by written submissions. The Applicant, through Maiyo Linet & Associates, filed three sets of submissions: Submissions dated 18th May 2026 in support of its application; Submissions dated 12th August 2026 on the Respondent’s Preliminary Objection; and further submissions dated the same date. The Respondent, on the other hand, filed submissions dated 31st August 2026, addressing both its Preliminary Objection and the Applicant’s application.
Analysis and Determination
11. Having duly considered the pleadings and the submissions on record, I find the main issues for determination are;
i. Whether the preliminary objection is merited
ii. Whether the Applicant’s application for amendment of the Bill of Lading and Cargo Manifest is merited.
Whether the Preliminary Objection is merited
12. The Respondent’s Preliminary Objection is premised, in substance, on the ground that the Applicant has commenced substantive proceedings by way of a Miscellaneous Application, without filing a plaint or any other prescribed originating process. The Respondent therefore urges the Court to strike out the proceedings with costs.
13. The Applicants oppose the objection, contending that the objection does not meet the threshold set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, since the dispute involves contested questions of fact. They further contend that the Court has jurisdiction to entertain the application and that the procedural form adopted ought not to defeat the substantive dispute. Reliance is placed, among other provisions, on Article 159(2)(d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act.
14. I have considered the Preliminary Objection, the parties' respective submissions and the record. The issue for determination is whether the objection meets the Muskisa Biscuit threshold, and if yes, whether the proceedings, having been commenced by way of a Miscellaneous Application seeking substantive relief without a substantive suit, are competently before the Court.
15. As rightly submitted by the Applicant, the applicable test for a valid preliminary objection remains that set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (supra). A preliminary objection must raise a pure point of law, argued on the assumption that the facts pleaded by the opposing party are correct. It cannot properly be raised where a fact has to be ascertained or where the Court is called upon to exercise judicial discretion.
16. The objection before the Court challenges the competence of the proceedings on the ground that the Applicant has commenced a substantive claim by way of a Miscellaneous Application, without a substantive plaint or other prescribed originating process. This is a question that can be determined from the face of the Court record. It does not require the Court to receive evidence, resolve a dispute of fact or exercise judicial discretion. The relevant facts—the nature of the proceedings and the process by which they were commenced—are matters apparent from the record and are not in dispute.
17. Further, the objection does not invite the Court to determine whether the Applicant's substantive claim is meritorious. It raises a threshold question as to whether there is a competent proceeding before the Court upon which the substantive reliefs sought can be adjudicated. If the objection succeeds, the consequence would be to terminate the proceedings in their present form.
18. I am therefore satisfied that the objection raises a pure question of law, is capable of determination without ascertainment of disputed facts or the exercise of judicial discretion, and, if successful, would dispose of the proceedings. It consequently satisfies the threshold established in Mukisa Biscuit Manufacturing case and is properly before the Court as a preliminary objection.
19. Having so found, I now turn to the substantive question whether the commencement of these proceedings by way of a Miscellaneous Application, in the absence of a plaint or other prescribed originating process, renders the proceedings incompetent.
20. Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by the rules. Order 3 rule 1(1) of the Civil Procedure Rules, 2010 provides that every suit shall be instituted by presenting a plaint to the Court, “or in such other manner as may be prescribed.” The effect of the provision is that a claim seeking adjudication and determination of substantive rights must be commenced in a manner authorised by law.
21. In Scope Telematics International Sales Ltd v Stoic Company Ltd & another [2017] eKLR, the Court of Appeal, considering a stand-alone Notice of Motion seeking substantive relief in the absence of a suit, stated as follows:
“The manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction. Obviously, in overlooking a statutory imperative and the above authorities, the learned Judge cannot be said to have exercised his discretion properly. There can be no other interpretation of Rule 2. The application should have been anchored on a suit.”
22. The Court in Scope Telematics distinguished cases where a miscellaneous application is permissible because no substantive rights are being enforced. The Court, in overturning the decision of the High Court, stated that: -
“The Judge in his determination held that the fact that the application was not anchored on a suit did not render it fatal so as to deny the 1st respondent the right to seek an interim relief. The Judge was of the view that in some instances a party could be allowed to file a miscellaneous application without the basis of a suit where such a party was not seeking to enforce any rights or obligations and where there was no action being enforced or tried like in the present case. The Judge relied on the case of Joseph Kibowen Chemjor v William C. Kisera [2013] eKLR where it was held that in some instances, the court would be asked to exercise its discretion on procedural issues, for example, when a party was seeking leave to institute suit out of time or leave to commence judicial review proceedings. In our view, that authority was inapplicable and clearly distinguishable in the circumstances of this case since it dealt with the filling of a miscellaneous applications, which is a form of initiating a suit that is permitted by the Civil Procedure Act, and the rules made there-under, more so where no procedure is provided. In the present case, a procedure is provided for, which is that the application be mounted upon a suit.”
23. In the present case, the Applicants seek orders directing amendment of the Bill of Lading and cargo manifest, consequential directions to KRA and KPA, and restraint of the Respondent from interfering with the vehicle. These orders are founded on the Applicants’ asserted contractual and proprietary rights and are not merely interlocutory reliefs ancillary to an existing suit. These are, in my view, substantive issues which cannot be raised and finally determined in a claim originated by way of a miscellaneous application.
24. The Applicants’ reliance on Article 159(2)(d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act does not cure the defect. Article 159 is not a substitute for a prescribed originating process, nor can the Court's inherent jurisdiction be invoked to create jurisdiction where the law has prescribed the manner in which the jurisdiction is to be invoked. The Court of Appeal in Scope Telematics made this distinction clear.
25. Having reached the conclusion that the application is incompetent, it therefore becomes otiose to consider the substantive issues raised therein.
26. In the result, I find that the Preliminary Objection dated 28th May 2026 merited. The Notice of Motion dated 14th April 2026 is incompetent and is struck out, with costs to the Respondent.
27. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court