https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9959

Muriithi v Mwangi (Miscellaneous Application E399 of 2026) [2026] KEHC 9959 (KLR) (Commercial and Tax) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 9959 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E399 of 2026 BK Njoroge, J July 8, 2026 Between John Mwirigi Muriithi Applicant and Edith Wambui Mwangi Respondent Ruling 1.Preliminary objections are frequently deployed in commercial litigation as a shield, but often, they are merely a smokescreen designed to delay the inevitable. A true preliminary objection must be a pure point of law. It is a legal torpedo that ends a suit without the need to navigate the murky waters of contested facts. This Ruling determines whether the Respondent's objection is a genuine legal torpedo or a premature factual contest. It is in respect of a Notice of Preliminary Objection raised by the Respondent in this matter. It is hinged on the ground that the suit is sub judice and that the derivative action is premature. Background Facts 2.The Applicant commenced this suit by way of an application under a Certificate of Urgency dated 9th April, 2026. This accompanied an application by way of a Notice of Motion dated 9th April, 2026. The application sought the following orders summarised as follows:a.That the Applicant be granted permission to commence and continue a derivative claim on behalf of Home Work Supplies Limited in respect of the Respondent's alleged acts of theft, funds embezzlement, fraud, and breach of duty.b.Furthermore, the Applicant sought temporary injunctions to freeze six specific Safaricom M-Pesa accounts and preserve the company's assets, alleging that Kshs 1,975,000/= had been illegally withdrawn and laundered. 3.In response, the Respondent fired back by filing a Notice of Preliminary Objection dated 14th April, 2026. It raised the following grounds: 4.Firstly, that the matter is sub judice, there being pending proceedings before Hon. Mr. Justice William Musyoka in the Judicial Review Division at the Milimani Law Courts in HCJR/E094/2026. Secondly, that the derivative action is premature because the Company's Articles of Association contain a mandatory arbitration clause that has not been invoked. 5.The Notice of Preliminary Objection was canvassed by way of written submissions. Issues for Determination 6.The Court has considered the Notice of Preliminary Objection, the written submissions and the oral highlights by Counsel for the parties. The Court frames a single issue for determination as follows:a.Whether the Notice of Preliminary Objection dated 14th April, 2026 is merited. Analysis 7.The leading case on Preliminary Objections is the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Court of Appeal stated as follows:“A preliminary objection consists of a pure 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... It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 8.Further, the Supreme Court of Kenya in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) has stated as follows:“Thus, a preliminary objection may only be raised on a 'pure question of law'. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts." 9.In canvassing the Notice of Preliminary Objection, Mr. Rateng, Counsel for the Respondent, raised these issues: 10.That the doctrine of sub judice applies, hence the Court lacks jurisdiction. He relied on Section 6 of the Civil Procedure Act which states as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties... pending in the same or any other court having jurisdiction to grant the relief claimed." 11.He submitted that there were pending Judicial Review Proceedings in Milimani HCJR/E094/2026, before Honourable Mr. Justice William Musyoka. That the proceedings involve the same parties. The Court was invited to peruse the proceedings filed and reach a determination that the suit was sub judice. 12.Mr. Mwangi Mburu was of a different opinion. He was of the view that the matter of sub judice cannot be a pure point of law. Once a Court is requested to peruse contested facts, that ceases to be a pure point of law. 13.He also addressed the argument that the derivative action is premature. The Respondent argued that the Memorandum and Articles of the Company invite the parties to engage in arbitration in the event of a dispute. Since no arbitration proceedings have been commenced, the suit is premature. 14.The response by Mr. Mwangi Mburu is that, once again, the Court is being invited to consider factual matters. 15.The Court has carefully considered the rival arguments herein. It agrees with Mr. Mwangi Mburu in that the Preliminary Objections are based on factual matters. It may very well be that this suit is sub judice. However, for the Respondent to demonstrate and prove the sub judice element, they need to lead evidence and rely on facts. The Applicant does not concede to these facts hence they form the basis of a contest. 16.The Court will have to look at and compare separate pleadings filed in separate Courts. At that point in time, the Court is dealing with contested facts. 17.Even on the issue as to whether there was an arbitration clause. The Court is invited to look at the Memorandum and Articles of Association of the company. It is upon digesting these facts that the Court can deliver its considered opinion. That is as to whether the suit is subject to an arbitration clause or not. 18.To this Court, these look like objections that would have better been raised through an application for striking out, rather than a Preliminary Objection. 19.In support of this proposition, the Court refers to the decision in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Sup. Ct. Application No. 23 of 2014. The Supreme Court held that an objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion to evaluate evidence. 20.The upshot is that the Court is not persuaded that the Notice of Preliminary Objection is merited. 21.As to costs, the same follow the event and lie at the discretion of the Court. The Court having found that the Preliminary Objection was not well taken awards costs thereof to the Applicant. Determination 22.The Respondent's Notice of Preliminary Objection dated 14th April, 2026 is overruled and the same is struck out. 23.The costs of the Preliminary Objection are awarded to the Applicant. 24.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 8TH DAY OF JULY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Mwangi Mburu Applicant.Mr. Rateng Respondent.Mr. John Paul – Court Assistant.