(On the Notice of Preliminary Objection dated 28th April 2026 filed by the 1st to 3rd Defendants, with which the 4th Defendant has aligned itself)
1. By a Notice of Preliminary Objection dated 28th April 2026 ("the Preliminary Objection"), the 1st to 3rd Defendants object to the Plaintiff’s suit and his Notice of Motion dated 16th April 2026 on three principal grounds:
i. That the suit and the Motion were commenced in breach of mandatory statutory provisions—specifically Section 228 of the repealed Companies Act (Cap 486) (equivalent to the present Section 432(2)) of the Insolvency Act, No. 18 of 2015- having been filed without court leave despite an active Interim Liquidation Order in Milimani Winding Up Cause No. 9 of 2009 (Emirates National Oil Company (Singapore) Private Ltd v Triton Petroleum Co. Ltd); and
ii. That the Motion is fatally defective for lack of competent supporting evidence.
2. The 4th Defendant, Central Bank of Kenya ("CBK"), filed Written Submissions dated 20th May 2026 aligning itself fully with the Preliminary Objection. CBK raised an additional ground regarding the failure of the pleadings to disclose a reasonable cause of action against it. However, that issue has been fully addressed and determined in this Court’s separate Ruling on CBK’s Notice of Motion of even date. Those findings stand and are incorporated herein by reference; hence, that ground is not revisited.
3. The Preliminary Objection is opposed. The Plaintiff filed Submissions in Reply dated 22nd May 2026 responding to points of law raised by the 1st to 3rd Defendants. I have carefully considered the submissions together with the 1st – 3rd Respondents' submissions of even date.
4. The principles governing preliminary objections in Kenya are well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Law JA held that a preliminary objection consists of a pure point of law which has been pleaded or arises by clear implication out of the pleadings, and which, if decided in the applicant's favor, disposes of the suit. Sir Charles Newbold P emphasized that a preliminary objection:
"...raises a pure point of law 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."
5. This principle was re-affirmed by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR. Consequently, before examining the merits of the raised grounds, this Court must determine whether they constitute pure points of law or require factual evaluation.
6. Section 228 of the repealed Companies Act (Cap 486) and Section 432(2) of the Insolvency Act (No. 18 of 2015) uniformly mandate that once a winding-up order is made, or an interim liquidator is appointed, no action or proceeding may be commenced or proceeded with against the company except by leave of the court.
7. In the present case, it is uncontroverted that Triton Petroleum Company Limited ("TPC") has been subject to an Interim Liquidation Order in Winding Up Cause No. 9 of 2009, and that no statutory leave was sought or obtained prior to filing this suit. The central legal question is whether this suit constitutes a "proceeding against the company" under the cited statutory provisions.
8. I have gone through the pleadings and entire record. TPC is obviously not named, joined, or sued as a defendant in these proceedings. The suit names the Receivers and Managers (1st Defendants), the appointing debenture holders (2nd & 3rd Defendants), and the regulator (4th Defendant). The Plaintiff seeks leave under Sections 239 and 240 of the Companies Act to prosecute the matter as a derivative action on behalf of TPC.
9. By definition, a derivative action is brought for the benefit of, and not against, the company. It asserts the company's own cause of action against alleged wrongdoers who control or affect its operations.
10. Consequently, as TPC is not a defendant, this action does not fall within the moratorium provisions of Section 228 of the repealed Companies Act (Cap 486) (the present Section 432(2)) of the Insolvency Act, No. 18 of 2015. Accordingly, Grounds 1 and 3 of the Preliminary Objection therefore fail.
11. Regarding the Objection that the application is defective for having been made without any evidence (Ground 2 of the Preliminary Objection), the Court is of the view that the alleged complaints, such as non-exhibition of foundational documents (e.g., Deed of Settlement, Deed of Appointment of Receivers, debentures, audited accounts) complained of, are matters which require the Court to evaluate, weigh, and analyze the evidentiary record and affidavit evidence.
12. Under the Mukisa Biscuit doctrine, a point requiring the verification, weighing, or ascertainment of factual evidence cannot be determined by way of a preliminary objection. Accordingly, Ground 2 is a challenge to the evidentiary merits of the Motion and must be canvassed at the main hearing.
13. For the reasons set out above, the Notice of Preliminary Objection dated 28th April 2026 is dismissed in its entirety.
14. The costs of the Preliminary Objection are awarded to the Plaintiff, in any event
15. the outcome of the main suit.
16. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17 TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Plaintiff
……………for the 1st – 3rd Defendants
………………. for the 4th Defendant
1. By a Notice of Preliminary Objection dated 28th April 2026 ("the Preliminary Objection"), the 1st to 3rd Defendants object to the Plaintiff’s suit and his Notice of Motion dated 16th April 2026 on three principal grounds:
i. That the suit and the Motion were commenced in breach of mandatory statutory provisions—specifically Section 228 of the repealed Companies Act (Cap 486) (equivalent to the present Section 432(2)) of the Insolvency Act, No. 18 of 2015- having been filed without court leave despite an active Interim Liquidation Order in Milimani Winding Up Cause No. 9 of 2009 (Emirates National Oil Company (Singapore) Private Ltd v Triton Petroleum Co. Ltd); and
ii. That the Motion is fatally defective for lack of competent supporting evidence.
2. The 4th Defendant, Central Bank of Kenya ("CBK"), filed Written Submissions dated 20th May 2026 aligning itself fully with the Preliminary Objection. CBK raised an additional ground regarding the failure of the pleadings to disclose a reasonable cause of action against it. However, that issue has been fully addressed and determined in this Court’s separate Ruling on CBK’s Notice of Motion of even date. Those findings stand and are incorporated herein by reference; hence, that ground is not revisited.
3. The Preliminary Objection is opposed. The Plaintiff filed Submissions in Reply dated 22nd May 2026 responding to points of law raised by the 1st to 3rd Defendants. I have carefully considered the submissions together with the 1st – 3rd Respondents' submissions of even date.
4. The principles governing preliminary objections in Kenya are well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Law JA held that a preliminary objection consists of a pure point of law which has been pleaded or arises by clear implication out of the pleadings, and which, if decided in the applicant's favor, disposes of the suit. Sir Charles Newbold P emphasized that a preliminary objection:
"...raises a pure point of law 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."
5. This principle was re-affirmed by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR. Consequently, before examining the merits of the raised grounds, this Court must determine whether they constitute pure points of law or require factual evaluation.
6. Section 228 of the repealed Companies Act (Cap 486) and Section 432(2) of the Insolvency Act (No. 18 of 2015) uniformly mandate that once a winding-up order is made, or an interim liquidator is appointed, no action or proceeding may be commenced or proceeded with against the company except by leave of the court.
7. In the present case, it is uncontroverted that Triton Petroleum Company Limited ("TPC") has been subject to an Interim Liquidation Order in Winding Up Cause No. 9 of 2009, and that no statutory leave was sought or obtained prior to filing this suit. The central legal question is whether this suit constitutes a "proceeding against the company" under the cited statutory provisions.
8. I have gone through the pleadings and entire record. TPC is obviously not named, joined, or sued as a defendant in these proceedings. The suit names the Receivers and Managers (1st Defendants), the appointing debenture holders (2nd & 3rd Defendants), and the regulator (4th Defendant). The Plaintiff seeks leave under Sections 239 and 240 of the Companies Act to prosecute the matter as a derivative action on behalf of TPC.
9. By definition, a derivative action is brought for the benefit of, and not against, the company. It asserts the company's own cause of action against alleged wrongdoers who control or affect its operations.
10. Consequently, as TPC is not a defendant, this action does not fall within the moratorium provisions of Section 228 of the repealed Companies Act (Cap 486) (the present Section 432(2)) of the Insolvency Act, No. 18 of 2015. Accordingly, Grounds 1 and 3 of the Preliminary Objection therefore fail.
11. Regarding the Objection that the application is defective for having been made without any evidence (Ground 2 of the Preliminary Objection), the Court is of the view that the alleged complaints, such as non-exhibition of foundational documents (e.g., Deed of Settlement, Deed of Appointment of Receivers, debentures, audited accounts) complained of, are matters which require the Court to evaluate, weigh, and analyze the evidentiary record and affidavit evidence.
12. Under the Mukisa Biscuit doctrine, a point requiring the verification, weighing, or ascertainment of factual evidence cannot be determined by way of a preliminary objection. Accordingly, Ground 2 is a challenge to the evidentiary merits of the Motion and must be canvassed at the main hearing.
13. For the reasons set out above, the Notice of Preliminary Objection dated 28th April 2026 is dismissed in its entirety.
14. The costs of the Preliminary Objection are awarded to the Plaintiff, in any event
15. the outcome of the main suit.
16. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17 TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Plaintiff
……………for the 1st – 3rd Defendants
………………. for the 4th Defendant