https://new.kenyalaw.org/akn/ke/judgment/scc/2026/211

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY** **COURT NAME: ELDORET SMALL CLAIMS** **COURT CASE NUMBER: SCCCOMM/E651/2026** **VALARY CHERUNYA VS MAX-GLOBAL LTD AND CORNELIUS KIPLAGAT AND 1 OTHERS** **RULING** 1. The claimant filed statement of claim dated 17th February, 2025 seeking judgment in the sum of Ksh 525,000/=, compensation, and costs of the claim. 2. The respondent filed a preliminary objection dated 22nd June, 2026 based on the grounds that the suit against the 2nd and 3rd respondents is premised upon them being the directors of Messrs Max Global Group Limited a limited liability company incorporated within the provisions of the company act, Further that the suit discloses no cause of action against the 2nd and 3rd respondents thus rendering it fatally and incurably defective. 3. The claimant filed grounds of opposition to the preliminary objection stating that the issues raised in the preliminary objection require this honourable court to interrogate the pleadings and determine the nature and extent of the 2nd and 3rd respondents’ personal involvement in the transaction giving rise to this suit including whether the statement of claim discloses a cause of action against them, matter which fall outside the scope of a valid preliminary objection. 4. A Preliminary Objection, according to the decided case by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) EA. 696 was stated to be thus: - “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. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 5. A proper preliminary objection did not require the court to investigate or verify contested facts. The Supreme Court in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR observed as follows: “… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 6. It is evident that a Preliminary Objection consists of pure points of law, and it is also capable of bringing the matter to an end preliminarily. Such an objection must be argued on the assumption that all facts pleaded by the opposite party are correct, and it cannot be raised if any fact has to be ascertained or if what is sought requires the exercise of judicial discretion. Whenever a Court, if forced to go into the pleadings to inquire the substance, claim, issues or responses to determine a Preliminary Objection, then the Objection should fail. 7. This Court finds it quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. On that basis, two questions emerge for this Court’s consideration under this limb: what pure point of law has the respondents raised in their preliminary objection and whether the facts in issue, are settled. The respondent’s contend that the claim raises no cause of action and the same is premised upon the 2nd and 3rd respondent’s being the 1st respondent’s directors. By and large the respondent’s dwelt on the character of the claim before this court in terms of the 2nd and 3rd respondent being sued as directors of the 1st respondent and the claim does not raise any cause of action. the claim is for refund of money held of Ksh 525,000/-. Even if for a moment, and for arguments sake, we were to take the subject of misjoinder as a pure point of law, the veracity of the respondent’s pleadings in this regard cannot be vouched for in the absence of a trial. Most critically Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. 8. Strictly speaking the respondent’s preliminary objection did not meet the requisite threshold, Newbold, JA in the celebrated case of Mukisa was right to opine that matters discretionary are outside the purview of preliminary objections. The upshot, the Preliminary objection is dismissed with cost to the claimant. Ruling dated and delivered at Eldoret this 7th day of August, 2026 M.E Aligula In the presence of: C/A Mr. Lepatoiye Claimant: Ms. Talam Respondent: Mr Kofuna