https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9838

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **HCCOMM NO. E351 OF 2026** **MILESTONE GAMES LIMITED ………………………….…. PLAINTIFF** **VERSUS** **SOFA IT D.O.O T/A** **SAFASCORE LTD……………………………………………1ST DEFENDANT** **LIVERSPORT S.R.O T/A** **FLASHCORE AND SOCCERWAY ……………………2ND DEFENDANT** **LIVERSCORE LTD T/A** **LIVERSCORE .COM ………………………………………3RD DEFENDANT** **SPORTLINK LTD T/A** **FUTBOL24.COM ……………………………………..……4TH DEFENDANT** **365SCORE LIMITED ………………………………..……5TH DEFENDANT** **FOTBOMOB ………………………………..……………….6TH DEFENDANT** **FOOTBALL ADDICTS AB T/A** **FORZA FOOTBAL …………………………………….……7TH DEFENDANT** **SUPERSPORT INTERNATIONAL ……………………8TH DEFENDANT** **ONEFOOTBALL GMBH T/A** **SUPERSPORT………………………………………….……9TH DEFENDANT** **FOOTBALLCO MEDIA LTD …………………….…… 10TH DEFENDANT** **AFSCORE ONE SPORT LTD ………………………..…11TH DEFENDANT** **BESOCCER SOLUTIONS LIMITED …………..……12TH DEFENDANT** **AZSCORE ……………………………………………………13TH DEFENDANT** **FOOTSTATS ………………………………………….……14TH DEFENDANT** **SCOREBAT LIMITED ……………………………..……15TH DEFENDANT** **SAS SKORES MEDIA ……………………………………16TH DEFENDANT** **LIVERSCORE GROUP LIMITED ……………………17TH DEFENDANT** **THE WALT DISNEY COMPANY LTD …………..…18TH DEFENDANT** **RED INTERACTIVE LIMITED ………………….……19TH DEFENDANT** **DPLAY ENTERTAINMENT LIMITED ……………20TH DEFENDANT** **AND** **FOOTBALL KENYA FEDERATION ………1ST INTERESTED PARTY** **COMMUNICATIONS AUTHORITY OF KENYA …2ND INTERESTED PARTY** **RULING** 1. The Plaintiff filed a plaint together with an application dated 1st June, 2026, seeking inter alia, a temporary injunction to stop the unauthorized commercial exploitation of Kenyan football data/content and an order directing the 2nd Interested Party to restrict the Defendants’ online visibility in Kenya. 2. In response to the application; the following Preliminary objections were filed; 1. ***The 1st Defendant filed a preliminary objection dated 16th June, 2026,*** 2. ***The 2nd and 12th Defendant filed a preliminary objection dated 9th June, 2026,*** 3. ***The 3rd and 17th Defendant filed a preliminary objection dated 12th June, 2026 and*** 4. ***The 19th Defendant filed a preliminary objection dated 18th June, 2026.*** 3. In summary, the preliminary objections seek orders striking out the plaint and application with costs on the grounds that the Plaintiff failed to comply with the mandatory procedural requirements governing the commencement of proceedings against Defendant’s resident outside Kenya. Specifically, they contend that the Plaintiff neither extracted nor served summons to enter appearance and did not obtained the requisite leave of the Court to effect service outside the jurisdiction as required under Order 5 of the Civil Procedure Rules. They argued that, owing to this non-compliance, the Court's jurisdiction was never properly invoked against them, rendering the proceedings undertaken against them a nullity incapable of being validated retrospectively. 4. The preliminary objection was canvased by way of submissions as follows; ***1st Defendant’s submissions*** 1. The 1st Defendant submits that according to the Plaint, it is a company incorporated and registered in Croatia and is therefore a foreign Defendant for purposes of Order 5 of the Civil Procedure Rules. It contends that under Order 5 Rules 21, 22, 25 and 27 of the Civil Procedure Rules, a Plaintiff intending to sue a party outside Kenya must first obtain leave of court before effecting service outside the jurisdiction. The 1st Defendant argues that, having failed to obtain such leave, the Plaintiff did not properly invoke the Court's jurisdiction and all proceedings taken against it are consequently a nullity. 2. In support of this position, the 1st Defendant relies on ***Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] KECA 471 (KLR)***, in which the Court of Appeal held that a Kenyan court assumes jurisdiction over a foreign Defendant only after leave has been granted to serve outside the jurisdiction and summons have subsequently been served. The 1st Defendant emphasizes the Court of Appeal's finding that even where a matter is urgent, there is no short cut to the mandatory procedure and that jurisdiction cannot be assumed before compliance with those requirements. The 1st Defendant also relies on ***Law Society of Kenya v Martin Day & 3 others [2015] KEHC 1336 (KLR)*** where the Court held that mere knowledge of proceedings by a foreign Defendant is insufficient to confer jurisdiction over a foreign Defendant. 3. It contends that a foreign Defendant must be invited to submit to the Court's authority through service effected in accordance with the Civil Procedure Rules. It argues that, unless the prescribed procedure is followed, the suit remains incapable of progressing against the foreign Defendant. 4. The 1st Defendant further submits that neither the Court's order of 2nd June, 2026, directing service upon the Defendants nor the availability of electronic service dispensed with the statutory requirement of obtaining prior leave to serve outside the jurisdiction. It urges that the order merely ensured notification of the proceedings and it did not confer jurisdiction upon the Court. Consequently, it maintains that any service effected without prior leave remained *void ab initio* notwithstanding that it was carried out electronically. 5. On the issue of submission to the Court's jurisdiction, the 1st Defendant contends that it entered appearance strictly under protest and solely for the purpose of challenging the Court’s jurisdiction. In this regard, it relies on ***Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] KECA 312 (KLR)*** to submit that its participation in the proceedings was limited to contesting jurisdiction and cannot be construed as submission to the Court's authority. 6. The 1st Defendant also challenges the injunction issued on 10th June, 2026, contending that the order was made before the Court had acquired jurisdiction over it. Citing ***Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] KECA 471 (KLR****)*, it argues that substantive orders cannot issue against a foreign Defendant before the requirements relating to service outside the jurisdiction have been satisfied. It therefore maintains that the injunction was issued without jurisdiction and is a nullity. 7. The 1st Defendant submits that any order made without jurisdiction is void and liable to be set aside by the Court on its own motion. In support of that proposition, it relies on ***Liyayi & 2 others v Musoga [2022] KECA 1117 (KLR)****.* It accordingly urges the Court to find that the Plaintiff's failure to obtain leave rendered the purported service void ab initio, that the Court never acquired jurisdiction over the 1st Defendant, that the injunction issued on 10th June, 2026, ought to be set aside and that the Preliminary Objection upheld with costs. ***2nd and 12th Defendant’s submissions*** 1. The 2nd and 12th Defendants submit that their Preliminary Objection raises a pure point of law as the material facts giving rise to the objection are not disputed. They contend that the Plaintiff has expressly pleaded that the 2nd and 12th Defendants are foreign incorporated entities and does not dispute that no leave of the Court was obtained before service of summons and notices outside the Court's jurisdiction. Accordingly, the only question before the Court is the legal effect of that omission, which they argue is a jurisdictional issue properly amenable to determination by way of a preliminary objection. In support of this proposition, they rely on the Supreme Court decision in ***Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] KESC 23 (KLR).*** 2. The 2nd and 12th Defendants further contend that the Plaintiff's reliance on Order 5, rule 22B of the Civil Procedure Rules, which permits service by electronic mail is misplaced. They argue that the introduction of electronic service neither abolished nor dilute the mandatory requirement that leave of the Court must first be obtained before effecting service over a foreign Defendant outside Kenya. In this regard, they rely on ***DNK v GS [2022] KEHC 547 (KLR),*** where the High Court held that jurisdiction over a foreign Defendant can only be assumed after leave for service outside the jurisdiction has been granted and that electronic service does not excuse a party from complying with that requirement. They also cite ***Zanele Investment Holding Limited v Alexander Forbes Emerging Markets (PTY) Limited [2017] KEHC 3122 (KLR)***for the proposition that Kenyan courts do not possess general jurisdiction over foreign Defendants and that the requirement for leave serves as a safeguard against the improper assumption of jurisdiction over foreign parties. 3. The Defendants therefore submit that the Plaintiff cannot circumvent this requirement by serving court documents through electronic mail and subsequently contending that the foreign Defendants submitted to the Court's jurisdiction merely by acknowledging receipt. They further reject the Plaintiff's argument that they submitted to the Court's jurisdiction by instructing advocates or participating in the proceedings. Relying on ***EK v PT (Miscellaneous Application E173 of 2023) [2024] KEHC 11722 (KLR),***they submitted that their appearance was entered solely for the limited purpose of contesting the Court's jurisdiction and therefore cannot amount to submission to the court’s jurisdiction. 4. The 2nd and 12th Defendants further submit that the Plaintiff has wrongly characterized the failure to obtain leave as a mere procedural technicality curable under Article 159(2)(d) of the Constitution. They contend that the omission goes to the very root of the Court's jurisdiction and is therefore substantive rather than procedural defect. In support of this argument, they cite ***Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)*** *and the case of* ***E M M v E E G [2018] KEHC 777 (KLR)****.* 5. The Defendants further argue that Article 159(2)(d) cannot be invoked to cure a jurisdictional defect. They cite ***Sawe v Interim Independent and Boundaries Commission & 3 others [2015] eKLR***, in which the Supreme Court held that Article 159 is not a panacea for all procedural noncompliance, particularly where the omitted procedural step constitutes a jurisdictional prerequisite. They also rely on ***Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR)***, where the Court of Appeal emphasized that Article 159(2)(d) does not render procedural rules otiose and cannot be used to cure every procedural default. 6. In conclusion, the 2nd and 12th Defendants urge the Court to uphold the Preliminary Objection and decline jurisdiction over them. ***3rd and 17th Defendant submissions*** 1. The 3rd and 17th Defendants submitted that their preliminary objection raises a pure point of law which, if upheld, would dispose of the suit against them. According to the 3rd and 17th Defendants the issue for determination is, whether this court properly assumed jurisdiction over them. 2. They urged that the Plaintiff neither sought nor obtained leave of court to serve summons outside the jurisdiction as required under Order 5, rules 21, 22 and 25 of the Civil Procedure Rules. As a result, the court did not properly acquire jurisdiction over the 3rd and 17th Defendants and the proceedings against them ought to be struck out with costs. 3. They submitted that the Plaintiff’s own pleading acknowledged that the 3rd and 17th Defendant are companies incorporated under the laws of Gibraltar and the laws of England and Wales. Despite this, no leave was obtained before effecting service outside Kenya. Reliance was placed on They relied upon ***Raytheon Africraft Credit Corporation &Another v Air Al-Faral Limited (2005) KECA 312 (KLR)*** where the court affirmed that jurisdiction over persons outside Kenya is assumed through the grant of leave to serve summons or notice of summons outside the jurisdiction. 4. Further reliance was placed on ***Kipkorir Kirui vs Vuclip Inc & Another (2023) KEHC 24642 (KLR)*** in which the court held that service on a party outside Kenya is comprehensively governed by Order 5 Rules 21, 22 and 25 of the Civil Procedure Rules and that leave must first be obtained through an application supported by evidence demonstrating that the Plaintiff has a good cause of action and demonstrating where the Defendant may be found. 5. The 3rd and 17th Defendant therefore contended that leave under Order 5 Rules 21 and 25 constitutes the jurisdictional gateway through which the court acquires authority over a foreign Defendant. In support of this proposition numerous authorities were cited including; the ***Law society of Kenya v Martin Day & 3 others (2015) KEHC 1336 (KLR)****;* and ***Misnak International (UK) Limited v 4MB Minina Limited C/O Ministry of Minina, Juba Republic of South Sudan & 3 others (2019) KECA 471(KLR); DNK v GS (2022) KEHC 547 (KLR).*** 6. On that basis they urged the Court to uphold the preliminary objection dated 12th June, 2026, with costs. ***8th Defendant’s submissions*** 1. The 8th Defendant filed a response to the application and submissions on jurisdiction, contending that the suit is incompetent as against it for failure to comply with the mandatory provisions governing service of court process on foreign Defendants. It submits that it is a corporation incorporated in the Republic of South Africa, a fact acknowledged by the Plaintiff in its Plaint, and that under Order 5, rules 21, 22 and 25 of the Civil Procedure Rules, the Plaintiff was required to obtain leave of the Court before serving summons or any other court process outside Kenya. 2. As no such leave was sought or obtained, the Court lacks jurisdiction over the 8th Defendant, rendering both the Plaint and the Notice of Motion dated 1st June, 2026, incompetent and liable to be struck out. In support of this position, reliance was placed on ***Adani v Aspen Pharmacare Holdings Limited [2024] KEELRC 13363 (KLR)****,* where the Court held that leave is mandatory before service upon a South African company outside Kenya. 3. The 8th Defendant further argues that the Plaintiff cannot cure this omission by relying on electronic service under Order 5, rule 22B of the Civil Procedure Rules. In this regard, it relies *on* ***DNK v GS [2022] KEHC 547 (KLR)*** and on ***Waweru Kihara & Co. Advocates LLP v Clifford Law Offices P.C & Another [2024] eKLR***. It maintains that its objection is not premature merely because summons have not been extracted, contending that Order 5, rule 22 applies not only to originating summons but also to the service of other court processes outside the jurisdiction. Accordingly, it submits that the Court has never acquired jurisdiction over it. 4. The 8th Defendant also contends that, in the absence of jurisdiction, the interim injunction granted in favour of the Plaintiff ought to be vacated. It argues that an injunction is an equitable and discretionary remedy, available only to a party that has complied with the applicable procedural requirements. Having failed to comply with the mandatory procedural requirements on service upon foreign Defendants, the Plaintiff should not be entitled to equitable relief. 5. Finally, it urges the Court to uphold its objection to jurisdiction, find that the proceedings against it are incompetent for non-compliance with Order 5 of the Civil Procedure Rules, and vacate the interim orders issued against it. ***9th Defendant’s submissions*** 1. In support of its preliminary objection dated 16th June, 2026, the 9th Defendant filed a list and bundle of authorities setting out numerous decisions in support of its proposition. The Court has carefully considered the cited authorities and the principles emerging therefrom. ***Plaintiff’s submissions*** 1. In its submissions and further submissions, the Plaintiff opposes the Preliminary Objections, contending that they are misconceived, premature and incapable of determination by way of a preliminary objection. The Plaintiff argues that the objections raise disputed questions of fact rather than pure questions of law. It identifies the key issues for determination as whether the objections meet the threshold of a proper preliminary objection; whether the question relating to service require ascertainment of facts and evidence, whether the appearance of advocates on record for the foreign Defendants defeats the objections, whether the objections are premature because summons had not yet been extracted, whether striking out the Plaint is warranted, whether the Court lacks jurisdiction, and who should bear the costs. 2. Relying principally on ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696****,* and ***Oraro v Mbaja [2005] KEHC 3182 (KLR)*** the Plaintiff submits that the objections do not raise pure points of law as they require the court to resolve contested factual matters relating to service. These include whether service was effected electronically, whether advocates had authority to accept service, whether the Defendants received the pleadings, whether they entered appearance through duly instructed advocates, whether they submitted to the Court's jurisdiction and whether any prejudice was suffered. According to the Plaintiff, such issued can only be determined through consideration of affidavits of service, email correspondence, delivery receipts, memoranda of appearance and other evidentiary material, thereby removing the objections from the ambit of a proper preliminary objection. 3. The Plaintiff further maintains that service was duly effected in accordance with the Civil Procedure Rules. It relies on Order 5, rule 22B of the Civil Procedure Rules, arguing that compliance with the provisions on electronic service is an evidentiary question unsuitable for determination through a preliminary objection. 4. The Plaintiff further contends that the Preliminary Objections are premature as they are founded on an alleged failure to obtain leave before serving summons outside the jurisdiction, yet no summons had not even been extracted or issued by the Court. It submits that Order 5, rule 21 specifically concerns service of summons, yet no summons had been extracted or issued at the time the objections were filed. It submits that Order 5, rule 21 concerns service of summons and that the proceedings then before the court related to an interlocutory application seeking urgent interim relief, which the Court was entitled to entertain pending service of summons. The Plaintiff argues that the Defendants cannot challenge service of summons that had not yet been issued and should instead await extraction and service of summons before raising any complaint regarding service outside Kenya. These arguments are reiterated and reinforced in the Plaintiff's Further Submissions, which emphasize that the notices of preliminary objection were filed before the occurrence of the very event upon which they are premised. 5. On the relief sought, the Plaintiff submits that striking out the Plaint is drastic and ought only to be exercised in the clearest of cases. It argues that courts should be slow to terminate proceedings where the alleged defect is capable of being cured and where no prejudice has been demonstrated. According to the Plaintiff, even if there were procedural deficiencies regarding service, such defects should not automatically lead to the striking out of a substantive claim, as this would elevate procedural technicalities above substantive justice and impede the Plaintiff's right to a fair hearing. 6. With regard to jurisdiction, the Plaintiff acknowledges the settled principle that jurisdiction is fundamental and cites ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)*** and the case of ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 45 (KLR)****.* However, it urges that the present objections do not challenge the court’s constitutional or statutory jurisdiction over the subject matter, but rather allege a procedural omission relating to service of summons that had not yet been issued. The Plaintiff contends that any failure to obtain leave for service outside the jurisdiction, if established, constitutes a curable procedural irregularity which may be remedied pursuant to Article 159(2)(d) of the Constitution. It further submits that the Defendants have demonstrated no prejudice, particularly as they have instructed advocates who are actively participating in the proceedings. 7. In its further submissions, the Plaintiff reiterates the objections improperly seek the determination of disputed factual matters through a preliminary objection. It also maintains that questions such as whether the foreign Defendants have local offices or business operations in Kenya is itself a disputed factual issue requiring evidence and cannot be resolved at a preliminary stage. 8. The Plaintiff further submits that Order 5, rule 21 concerns service of summons, whereas the present proceedings concern an interlocutory application filed contemporaneously with the Plaint, which the Court was fully entitled to entertain pending service of summons. It submits that the Defendants are effectively asking the Court to determine hypothetical questions relating to future service of summons before summons have even been issued. According to the Plaintiff, the proper course is for summons to be extracted and served in accordance with the Civil Procedure Rules, after which any objections relating to their service may appropriately be raised. The Plaintiff therefore urges the Court to dismiss all the Preliminary Objections with costs. ***Analysis and Determination*** 1. Having considered the Notice of Preliminary Objection, the parties’ submissions and the authorities cited, the issues for determination are; 1. *Whether the Preliminary Objections raises pure points of law capable of determination as preliminary objection.* 2. *Whether the Plaintiff's failure to obtain leave to serve the foreign Defendants outside the jurisdiction, and its alleged non-compliance with the provisions of Order 5 of the Civil Procedure Rules renders the Plaint and the Notice of Motion dated 1st June 2026 incompetent.* **Whether the Preliminary Objections raises pure points of law capable of determination as preliminary objection** 1. The principles governing preliminary objections are now well settled. In the case of ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***stated; ***“….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 a contract giving rise to the suit to refer the dispute to arbitration.”*** 1. In the same case Sir Charles Newbold, P. stated: *“****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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.****”* 1. The Supreme Court similarly emphasized the nature of a proper preliminary objection in **Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR** stating as follows: *“****It is 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.”*** 1. The rationale underlying these principles is straightforward. A preliminary objection is intended to dispose of a matter at the earliest opportunity where there exists a clear legal impediment apparent from the pleadings on record. Conversely, where the determination of the objection requires the Court to ascertain disputed facts, interpret contested documents, evaluate evidence test the credibility of assertions or make findings on issues that are central to the substantive dispute, or exercise judicial discretion, the matter falls outside the ambit of a proper preliminary objection and must be determined upon a consideration of its merits. 2. The Plaintiff contends that the present objections do not meet the threshold because they require the court to inquire into disputed matters of fact, including whether service was properly effected electronically, whether the advocates on record were duly instructed, whether the Defendants received the pleadings, whether they submitted to the jurisdiction of the Court by entering appearance, whether some of the Defendants maintain presences, have local offices or carry on business within Kenya and whether any prejudice has been occasioned by the alleged procedural defects. According to the Plaintiff, the resolution of these issues would necessitate consideration of affidavits of service, email correspondence, delivery confirmations and other evidentiary material, and therefore fall outside the scope of a proper preliminary objection. 3. The Defendants, take a contrary view. They submit that no factual controversy arises for determination. In their view, the material facts are either expressly admitted in the pleadings or are readily ascertainable from the pleadings and the court record. In particular, they point to the Plaintiff own pleadings, which acknowledge that the objecting Defendants are foreign corporations incorporated and domiciled outside Kenya. Equally undisputed, they contend, is the fact that no leave was sought or obtained before purported service outside the jurisdiction. The Defendants therefore argue that the sole issue for determination is the legal consequence of that omission, namely whether the Court validly assumed jurisdiction over the foreign Defendants. They maintain that this is a pure question of law properly falling within the ambit of a preliminary objection. 4. Having considered the rival arguments, I find merit in the Defendants' position. Properly understood, the objections do not invite the Court to determine whether service was actually effected, whether the Defendants ultimately received the pleadings, or whether their advocates were duly instructed. Rather, the objections proceed on the assumption that even if all the facts pleaded by the Plaintiff are accepted as true. The question raised is whether, notwithstanding those facts, the Plaintiff's admitted failure to obtain leave before effecting service outside the jurisdiction deprived the Court of jurisdiction over the foreign Defendants. That question is fundamentally legal in nature. 5. Significantly, the Plaintiff does not contend that leave under Order 5, rule 21 was obtained. Its case, instead, is that such leave was unnecessary at the stage when the suit and the interlocutory application were filed because summons had not yet been extracted and the matter was still at an interlocutory stage. Whether that proposition is legally sustainable requires an interpretation of the relevant provisions of the Civil Procedure Rules and an examination of their legal effect, if any. It does not require the ascertainment of disputed facts. 6. Further, the status of the objecting Defendants as foreign entities is not contested. The Plaint itself describes the various objecting Defendants as corporations incorporated outside Kenya. Equally, whether leave to effect serve outside the jurisdiction was sought is a matter readily ascertainable from the court record. It is not an issue requiring viva voce evidence, cross-examination or the resolution of conflicting factual accounts. 7. In my view, therefore, the Plaintiff's reliance on questions relating to electronic service, receipt of pleadings, instructions to counsel, or participation in the proceedings does not alter the character of the objections. Those matters become relevant only after the threshold question has been resolved. The primary issue raised by the objecting Defendants is whether, on the basis of the undisputed facts and the applicable provisions of Order 5 of the Civil Procedure Rules, this Court acquired jurisdiction over them in the first instance. Jurisdiction is a foundational question of law and, if successfully raised, is capable of disposing of the proceedings as against the objecting parties. 8. Accordingly, I find that the preliminary objections raise a pure point of law arising from undisputed facts and are capable of determination without the need of evidentiary inquiry. They therefore satisfy the threshold laid down in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*** and subsequent authorities. I therefore find that the preliminary objections are properly before the Court and call for determination on their merits. 9. I shall now proceed to determine **whether the alleged non-compliance with Order 5 of the Civil Procedure Rules renders the Plaint and the Notice of Motion incompetent.** 10. The preliminary objections are founded on the argument that this Court never acquired jurisdiction over the 1st, 2nd, 3rd , 8th, 12th , 17th and 19th Defendants because the Plaintiff neither obtained leave to serve summons outside Kenya nor extracted and served summons in accordance with Order 5, rules 21, 22, 25 and 27 of the Civil Procedure Rules. The Defendants contend that in the absence of such leave, any purported service upon them was invalid and incapable of conferring jurisdiction upon this court. They consequently urge the court to find that the proceedings and all consequential orders, including the interim injunction granted on 10th June, 2026, are a nullity and ought to be vacated. 11. The Plaintiff takes a contrary view. It submits that the objections are premature because they are founded upon an alleged failure to obtain leave for service of summons at a time when summons had not yet been extracted or issued. According to the Plaintiff Order 5, rule 21 regulates service of summons and does not affect the institution of a suit or the filing of an interlocutory application. The Plaintiff, argues that the Court became properly seized of the dispute upon the filing of the Plaint and was therefore entitled to entertain the application for interim relief pending extraction and service of summons. It further contends that any omission relating to service constitutes a procedural irregularity capable of being cured under Article 159(2) of the Constitution and should not result in the striking out of an otherwise competent suit. 12. There is no dispute that jurisdiction is fundamental. In ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1****,* the court stated that jurisdiction is everything and that without it a court must down it tools. Similarly, the Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR*** reaffirmed that a court’s jurisdiction flows from the Constitution or statute and cannot be expanded through judicial craft or innovation. It follows that compliance with procedural requirements that constitute a jurisdictional prerequisite cannot be treated lightly. 13. The central issue for determination is whether the Plaintiff was required to obtain leave before transmitting the Plaint, the Notice of Motion and other court processes to the foreign Defendants outside Kenya and before seeking orders intended to bind them. Resolution of that question turns on the proper interpretation of Order 5 of the Civil Procedure Rules and the binding authorities cited by the parties. 14. Order 5, rules 21, 22, 25 and 27 of the Civil Procedure Rules prescribe the procedure for service upon persons outside Kenya. The Rules require that before a Plaintiff can invoke the jurisdiction of a Kenyan court over a foreign Defendant through service outside the jurisdiction, leave of the Court must first be obtained. The Court thereafter determines whether a proper case has been made for service outside Kenya and if satisfied, grants appropriate directions regarding the manner in which such service is to be effected. 15. The Court of Appeal authoritatively pronounced itself on this question in ***Misnak International (UK) Limited v 4MB Mining Limited & 3 Others [2019] eKLR***. After reviewing the provisions of Order 5, the Court held that jurisdiction over a foreign Defendant is assumed in two sequential stages: first, the Plaintiff must obtain leave to serve summons outside the jurisdiction; secondly, upon grant of such leave, summons must be served in accordance with the directions of the Court. The Court emphatically stated that it is only after those steps have been undertaken that a Kenyan court assumes jurisdiction over a foreign Defendant. Significantly, the Court rejected the argument that urgency could justify departure from the prescribed procedure, observing that the learned Judge had "placed the cart before the horse" by directing service before first determining the question of leave. 16. The same principle was affirmed in ***Raytheon Aircraft Credit Corporation & Another v Air Al-Faraj Limited [2005] eKLR****,* where the Court of Appeal held that jurisdiction over persons outside Kenya is assumed only after leave has been granted and summons served in accordance with the procedure prescribed under Order 5. Likewise, in ***Law Society of Kenya v Martin Day & 3 Others [2015] eKLR****, the* High Court held that knowledge of proceedings by a foreign Defendant cannot substitute the mandatory procedure prescribed for service outside Kenya. 17. I have carefully considered the Plaintiff's submission that the present objections are premature because summons had not yet been extracted. While it is true that Order 5 Rule 21 refers to service of summons, the issue before court cannot be considered in isolation from the course adopted by the Plaintiff. The record shows that immediately after filing of the Plaint and the Notice of Motion dated 1st June 2026, the Plaintiff proceeded to transmit the documents to the foreign Defendants outside Kenya by electronic mail and thereafter proceeded to invite the Court to issue substantive injunctive orders affecting them. In doing so, the Plaintiff effectively invoked the coercive jurisdiction of this Court against foreign entities before first obtaining the leave contemplated under Order 5. 18. In my view, the Plaintiff cannot, simultaneously, contend that the question of leave had not arisen because summons had not been extracted, while, at the same time, proceed to serve the foreign Defendants with court processes outside the jurisdiction and seek orders binding them. Such a position is inconsistent. If leave had not yet become necessary because summons had not been issued, then equally there existed no lawful basis upon which the Plaintiff could transmit court process outside Kenya in anticipation of the Court exercising jurisdiction over those foreign Defendants. 19. Equally unpersuasive is the Plaintiff's reliance on Order 5, rule 22B regarding electronic service. That provision merely authorizes a mode of service. It does not dispense with the antecedent requirement that leave be obtained where service is to be effected outside Kenya. The distinction is important. Rules 21, 22 and 25 govern the Court's assumption of jurisdiction over foreign Defendants, whereas Rule 22B governs the manner in which service may be effected. Compliance with the latter cannot cure non-compliance with the former. 20. I am also not persuaded that Article 159(2)(d) of the Constitution can avail the Plaintiff. The omission complained of is not a mere procedural lapse capable of being overlooked in the interests of substantive justice. It concerns the process through which jurisdiction over foreign Defendants is acquired. As repeatedly stated by the superior courts, Article 159(2)(d) was never intended to override clear statutory requirements or to confer jurisdiction where the law has not done so. To permit the Plaintiff to invoke the Court's authority against foreign Defendants before complying with the mandatory requirements of Order 5 would be contrary to the principles articulated in ***Misnak International***and***Samuel Kamau Macharia****.* 21. Accordingly, I find that the Plaintiff failed to comply with the mandatory provisions of Order 5, rules 21, 22, 25 and 27 of the Civil Procedure Rules before purporting to serve the objecting foreign Defendants outside Kenya and before seeking orders against them. Consequently, this Court never acquired jurisdiction over those Defendants. It follows that the purported service was a nullity and ineffective incapable of conferring jurisdiction upon this Court. Equally, the interim orders issued by this Court cannot be sustained. 22. However, I do not accept the contention that this finding necessarily renders the entire Plaint a nullity. The proceedings presently before the Court arise principally from the Notice of Motion dated 1st June, 2026, and the interim orders issued pursuant thereto. The issue for determination is whether the Court properly acquired jurisdiction over the objecting foreign Defendants at the time those orders were sought and obtained. The finding that jurisdiction was not acquired over those Defendants does not, without more, extinguish the substantive suit. The Plaintiff remains at liberty, subject to the law and any applicable limitation periods, to take appropriate steps to regularize service and comply with the requirements of Order 5 of the Civil Procedure Rules. 23. In that regard, I find merit in the preliminary objections dated 9th June, 2026; 12th June, 2026; 16th June, 2026, and 18th June, 2026. The objections are hereby upheld to the extent that this Court had not acquired jurisdiction over the objecting foreign Defendants when the impugned interim orders were issued. Consequently, the proceedings and interim orders issued are a nullity for want of jurisdiction and are hereby set aside. 24. Orders accordingly. ***Delivered, Dated and Signed virtually this 2nd day of July, 2026*** **RHODA RUTTO** **JUDGE** **Court Assistant: Wabwire** **Mr. Githumbi for the 19th Defendant** **Mr. Muriithi for the 1st Defendant** **Mr. Mutesi holding brief for Mr. Omondi for the 8th Defendant** **Mr. Ochieng for the 2nd and 12th Defendants** **Ms. Chani holding brief for Mr. Otieno for the Plaintiffs** **Mr. Kariuki for the 1st Interested Party** **Ms. Wameyo holding brief for Mr. Kuyo for 3rd and 17th Defendants**