1. Jurisdiction is everything. It is the lifeblood of the law. Without it, a Court of law downs its tools. A Court cannot write a valid order if it lacks the jurisdictional pen to do so. The present ruling determines a preliminary objection which raises the issue of the jurisdiction of this Court.
Background Facts
2. The dispute arises from a complex web of corporate and banking relationships. On 6th January, 2026, the Applicant moved this Court via a Chamber Summons and a Notice of Motion. The applications were certified as urgent. The Applicant sought ex-parte conservatory orders. He sought to freeze the accounts of the 1st Interested Party held at the 1st Respondent Bank.
3. The Applicant averred that he was illegally, fraudulently, and unprocedurally removed as a director, shareholder, and authorized signatory of the 1st Interested Party. The Applicant contended that this removal fundamentally altered the risk profile of a credit facility advanced by the 1st Respondent. The said facility was secured by collateral valued in excess of Kenya Shillings Seventy Million (Kshs. 70,000,000). The collateral was allegedly provided by the Applicant and his children. The facility was utilized for the Maralal-Losuk Road Project Contract No. RWC 587. The project falls under the mandate of the 3rd Interested Party.
4. The Applicant averred that he issued a formal Notice of Dispute on 2nd January, 2026. Despite this notice, the 1st Respondent allegedly continued processing financial transactions. The Applicant consequently sought reinstatement to his position. He sought an investigation by the 2nd Respondent. He prayed for a permanent injunction restraining the 1st Respondent from processing transactions relating to the disputed facilities.
5. The 1st Interested Party is said to be registered in Kenya as a branch of a foreign company. The 2nd Interested Party is the parent company incorporated in the Republic of India.
6. In response to the application and the substantive suit, the 3rd, 4th, and 6th Respondents filed a Notice of Preliminary Objection dated 15th January, 2026. The 2nd Interested Party subsequently joined this objection. The Objectors sought to strike out the entire application and suit.
7. The Orders sought in the Notice of Preliminary Objection are as follows:
"TAKE NOTICE that the 3rd, 4th and 6th Respondents herein shall raise a preliminary objection in limine to the entire Application dated 6th January, 2026 on the following Grounds:
1. THAT this Court lacks competent jurisdiction to preside over this matter.
2. THAT the Applicant per the Companies Act, 2015 lacks locus to prosecute the Claim as prayed in the substantive suit."
8. The Court directed the parties to file written submissions. Both sides complied. The submissions reveal a robust contestation of facts as well as the legal principles. The parties cited numerous authorities to support their respective positions. The Court acknowledges these authorities.
9. The 3rd, 4th, and 6th Respondents submitted that the Preliminary Objection raises pure points of law. They relied on the threshold established in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696.
10. They argued that the 1st Interested Party is merely a registered branch of a foreign company. This is pursuant to Part XXXVII of the Companies Act, 2015. The branch does not issue separate shares under Kenyan law. The parent entity is domiciled in India.
11. The Objectors submitted that the dispute essentially concerns internal corporate governance. Such matters are governed by the lex incorporationis (the law of the place of incorporation). They argued that Kenyan Courts lack jurisdiction to supervise the internal management of a foreign entity.
12. On the issue of locus standi, the Objectors argued that the Applicant is not a shareholder of the parent company. They annexed Form MGT-7 from the Indian Registrar of Companies. This document demonstrates that the Applicant holds no shares in the 2nd Interested Party. The Objectors concluded that the Applicant lacks locus standi to institute derivative actions or oppression claims under the Companies Act, 2015.
13. The Applicant opposed the Preliminary Objection. He argued that the objection offends the threshold set in Mukisa Biscuit. The Applicant submitted that the determination of locus standi requires a factual inquiry. It requires an examination of shareholding, directorship, and collateral exposure. These matters cannot be resolved in limine.
14. The Applicant asserted that the High Court possesses unlimited original jurisdiction in civil and commercial matters. This jurisdiction is anchored in Article 165(3) of the Constitution of Kenya, 2010. The Applicant submitted that the Court retains supervisory jurisdiction over foreign companies operating in Kenya. The Court also exercises jurisdiction over the 2nd Respondent.
15. On the issue of standing, the Applicant relied on Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) and Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] KEELC 37 (KLR). He submitted that the exposure of collateral exceeding KES 70,000,000 establishes a direct legal and beneficial interest. This interest confers the requisite standing to sue.
Issue for Determination
16. Upon careful consideration of the pleadings, the Notice of Preliminary Objection, the rival submissions, and the authorities cited, this Court frames the following issues for determination:
(i) Whether the Preliminary Objection meets the legal threshold of a pure point of law.
Analysis
17. The jurisprudence governing preliminary objections in Kenya is well settled. The locus classicus remains the Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. The principles enunciated in that decision have stood the test of time.
18. In Mukisa Biscuit, Law JA stated:
"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."
19. In the same decision, Newbold P rendered his seminal concurring opinion:
"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."
20. This standard was recently reaffirmed by the Supreme Court of Kenya in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR). The Supreme Court reiterated that an objection must not deal with disputed facts, and it must not itself derive its foundation from factual contestations. The Court also considers the persuasive authority of Oraro v Mbaja [2005] KEHC 3182 (KLR) which observed:
"Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence."
21. The Applicant vehemently argued that the objection is fact-heavy. He contended that his status as a shareholder and director is disputed by the Respondents. This, he argued, necessitates the adduction of evidence.
22. A preliminary objection must be argued on the assumption that the facts pleaded by the Applicant are correct. The Applicant pleaded that he is a shareholder and director of the 1st Interested Party. He pleaded that the 1st Interested Party is "TUNASCO INTERNATIONAL INDIA LIMITED". The official records from the 2nd Respondent, which the Applicant himself relies upon, confirm that the 1st Interested Party is registered in Kenya as a foreign company. It bears Company Number FC-G6TRG8.
23. The legal character of the 1st Interested party has also been brought into question. The locus standi of the Applicant in filing this suit has also been challenged.
24. To this Court, the parties rely on the facts as presented in the pleadings, the Affidavits or the attachments in either supporting or opposing the Notice of Preliminary Objection.
25. Whereas the arguments raised by the 3rd, 4th, and 6th Respondents remain very attractive, this Court warns itself that it cannot determine the Preliminary Objection on the basis of contested facts. A party would be better placed to file a substantive application restating the facts and attaching the relevant evidence. The opposing party would equally have an opportunity to respond by way of an affidavit with the necessary attachments in opposition. The Court would thereafter be in a position to deliver itself as to the question as to whether based on the pleadings, the facts and the law, it is vested with the jurisdiction to determine this suit.
26. This Court says so because once it has to consider facts either by way of Affidavits or annextures, then this ceases to be a pure point of law. It becomes an objection based on facts and evidence. That would be a candidate for a Motion for striking out, rather than a Preliminary Objection. The Court is persuaded by the decision of Naikuni J. in Micheru v Abdi & 2 others [2026] KEELC 943 (KLR) where the Court stated as follows:
“Having looked at the definition and what constitutes a preliminary objection considering the issue for determination before this court, I am not satisfied that the Preliminary Objection dated 13th March 2025 raises a pure point of law which merits consideration by this court. The issues raised by the Applicant/Plaintiff are issues which can only be resolved on an intensive and thorough hearing on its own merit before the Environment & land Court.”
27. As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Plaintiff/Applicant as the successful party is awarded the costs of the Notice of Preliminary Objection.
Determination
28. The preliminary objection dated 15th January, 2026, is found to be unmerited and the Court makes the following orders:
(a) The Notice of Preliminary Objection dated 15th January, 2026 is overruled and is HEREBY struck out.
(b) The Plaintiff/Applicant is awarded the costs of the Notice of Preliminary Objection.
29. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Bosire for the Original Plaintiff/Applicant.
Mr. Musyoki for the 2nd Interested Party.
Miss Kheira for the 5th Respondent and 1st Interested Party.
Mr. John Paul - Court Assistant.
Background Facts
2. The dispute arises from a complex web of corporate and banking relationships. On 6th January, 2026, the Applicant moved this Court via a Chamber Summons and a Notice of Motion. The applications were certified as urgent. The Applicant sought ex-parte conservatory orders. He sought to freeze the accounts of the 1st Interested Party held at the 1st Respondent Bank.
3. The Applicant averred that he was illegally, fraudulently, and unprocedurally removed as a director, shareholder, and authorized signatory of the 1st Interested Party. The Applicant contended that this removal fundamentally altered the risk profile of a credit facility advanced by the 1st Respondent. The said facility was secured by collateral valued in excess of Kenya Shillings Seventy Million (Kshs. 70,000,000). The collateral was allegedly provided by the Applicant and his children. The facility was utilized for the Maralal-Losuk Road Project Contract No. RWC 587. The project falls under the mandate of the 3rd Interested Party.
4. The Applicant averred that he issued a formal Notice of Dispute on 2nd January, 2026. Despite this notice, the 1st Respondent allegedly continued processing financial transactions. The Applicant consequently sought reinstatement to his position. He sought an investigation by the 2nd Respondent. He prayed for a permanent injunction restraining the 1st Respondent from processing transactions relating to the disputed facilities.
5. The 1st Interested Party is said to be registered in Kenya as a branch of a foreign company. The 2nd Interested Party is the parent company incorporated in the Republic of India.
6. In response to the application and the substantive suit, the 3rd, 4th, and 6th Respondents filed a Notice of Preliminary Objection dated 15th January, 2026. The 2nd Interested Party subsequently joined this objection. The Objectors sought to strike out the entire application and suit.
7. The Orders sought in the Notice of Preliminary Objection are as follows:
"TAKE NOTICE that the 3rd, 4th and 6th Respondents herein shall raise a preliminary objection in limine to the entire Application dated 6th January, 2026 on the following Grounds:
1. THAT this Court lacks competent jurisdiction to preside over this matter.
2. THAT the Applicant per the Companies Act, 2015 lacks locus to prosecute the Claim as prayed in the substantive suit."
8. The Court directed the parties to file written submissions. Both sides complied. The submissions reveal a robust contestation of facts as well as the legal principles. The parties cited numerous authorities to support their respective positions. The Court acknowledges these authorities.
9. The 3rd, 4th, and 6th Respondents submitted that the Preliminary Objection raises pure points of law. They relied on the threshold established in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696.
10. They argued that the 1st Interested Party is merely a registered branch of a foreign company. This is pursuant to Part XXXVII of the Companies Act, 2015. The branch does not issue separate shares under Kenyan law. The parent entity is domiciled in India.
11. The Objectors submitted that the dispute essentially concerns internal corporate governance. Such matters are governed by the lex incorporationis (the law of the place of incorporation). They argued that Kenyan Courts lack jurisdiction to supervise the internal management of a foreign entity.
12. On the issue of locus standi, the Objectors argued that the Applicant is not a shareholder of the parent company. They annexed Form MGT-7 from the Indian Registrar of Companies. This document demonstrates that the Applicant holds no shares in the 2nd Interested Party. The Objectors concluded that the Applicant lacks locus standi to institute derivative actions or oppression claims under the Companies Act, 2015.
13. The Applicant opposed the Preliminary Objection. He argued that the objection offends the threshold set in Mukisa Biscuit. The Applicant submitted that the determination of locus standi requires a factual inquiry. It requires an examination of shareholding, directorship, and collateral exposure. These matters cannot be resolved in limine.
14. The Applicant asserted that the High Court possesses unlimited original jurisdiction in civil and commercial matters. This jurisdiction is anchored in Article 165(3) of the Constitution of Kenya, 2010. The Applicant submitted that the Court retains supervisory jurisdiction over foreign companies operating in Kenya. The Court also exercises jurisdiction over the 2nd Respondent.
15. On the issue of standing, the Applicant relied on Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) and Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] KEELC 37 (KLR). He submitted that the exposure of collateral exceeding KES 70,000,000 establishes a direct legal and beneficial interest. This interest confers the requisite standing to sue.
Issue for Determination
16. Upon careful consideration of the pleadings, the Notice of Preliminary Objection, the rival submissions, and the authorities cited, this Court frames the following issues for determination:
(i) Whether the Preliminary Objection meets the legal threshold of a pure point of law.
Analysis
17. The jurisprudence governing preliminary objections in Kenya is well settled. The locus classicus remains the Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. The principles enunciated in that decision have stood the test of time.
18. In Mukisa Biscuit, Law JA stated:
"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."
19. In the same decision, Newbold P rendered his seminal concurring opinion:
"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."
20. This standard was recently reaffirmed by the Supreme Court of Kenya in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR). The Supreme Court reiterated that an objection must not deal with disputed facts, and it must not itself derive its foundation from factual contestations. The Court also considers the persuasive authority of Oraro v Mbaja [2005] KEHC 3182 (KLR) which observed:
"Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence."
21. The Applicant vehemently argued that the objection is fact-heavy. He contended that his status as a shareholder and director is disputed by the Respondents. This, he argued, necessitates the adduction of evidence.
22. A preliminary objection must be argued on the assumption that the facts pleaded by the Applicant are correct. The Applicant pleaded that he is a shareholder and director of the 1st Interested Party. He pleaded that the 1st Interested Party is "TUNASCO INTERNATIONAL INDIA LIMITED". The official records from the 2nd Respondent, which the Applicant himself relies upon, confirm that the 1st Interested Party is registered in Kenya as a foreign company. It bears Company Number FC-G6TRG8.
23. The legal character of the 1st Interested party has also been brought into question. The locus standi of the Applicant in filing this suit has also been challenged.
24. To this Court, the parties rely on the facts as presented in the pleadings, the Affidavits or the attachments in either supporting or opposing the Notice of Preliminary Objection.
25. Whereas the arguments raised by the 3rd, 4th, and 6th Respondents remain very attractive, this Court warns itself that it cannot determine the Preliminary Objection on the basis of contested facts. A party would be better placed to file a substantive application restating the facts and attaching the relevant evidence. The opposing party would equally have an opportunity to respond by way of an affidavit with the necessary attachments in opposition. The Court would thereafter be in a position to deliver itself as to the question as to whether based on the pleadings, the facts and the law, it is vested with the jurisdiction to determine this suit.
26. This Court says so because once it has to consider facts either by way of Affidavits or annextures, then this ceases to be a pure point of law. It becomes an objection based on facts and evidence. That would be a candidate for a Motion for striking out, rather than a Preliminary Objection. The Court is persuaded by the decision of Naikuni J. in Micheru v Abdi & 2 others [2026] KEELC 943 (KLR) where the Court stated as follows:
“Having looked at the definition and what constitutes a preliminary objection considering the issue for determination before this court, I am not satisfied that the Preliminary Objection dated 13th March 2025 raises a pure point of law which merits consideration by this court. The issues raised by the Applicant/Plaintiff are issues which can only be resolved on an intensive and thorough hearing on its own merit before the Environment & land Court.”
27. As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Plaintiff/Applicant as the successful party is awarded the costs of the Notice of Preliminary Objection.
Determination
28. The preliminary objection dated 15th January, 2026, is found to be unmerited and the Court makes the following orders:
(a) The Notice of Preliminary Objection dated 15th January, 2026 is overruled and is HEREBY struck out.
(b) The Plaintiff/Applicant is awarded the costs of the Notice of Preliminary Objection.
29. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Bosire for the Original Plaintiff/Applicant.
Mr. Musyoki for the 2nd Interested Party.
Miss Kheira for the 5th Respondent and 1st Interested Party.
Mr. John Paul - Court Assistant.