https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9682

Ndiso (Suing as Chairman and Authorized Representatives of Nine Sisters Home Owners and Residents Karen Association) v Fatai & 8 others (Civil Case E106 of 2026) [2026] KEHC 9682 (KLR) (Civ) (15 June 2026) (Ruling) Neutral citation: [2026] KEHC 9682 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E106 of 2026 SN Mutuku, J June 15, 2026 Between Nicholas Omondi Ndiso (Suing as Chairman and Authorized Representatives of Nine Sisters Home Owners And Residents Karen Association) Plaintiff and Henry Mwangi Fatai 1st Defendant Brian Allan Oluoch 2nd Defendant Immaculate Nyambura Rugoiyo 3rd Defendant Charles Wachira Kahara 4th Defendant Fresh Living Limited 5th Defendant Bernard Ochieng Asoro 6th Defendant Maureen Nduta Matu 7th Defendant Benson Omondi Omol 8th Defendant Kevin Kipkorir Kilach 9th Defendant Ruling 1.The 1st to 6th, 8th and 9th defendants herein have raised a Notice of Preliminary Objection (PO) dated 21st April 2026 against a Notice of Motion (the Application) filed by the Plaintiff herein. In the Application, the Applicant is seeking Summons to produce documents directed at Stanbic Bank Kenya Limited, the Hub, Karen Branch, requiring the Bank to produce certified bank statements for all accounts operated on behalf of the Nine sisters Apartments from the date of account opening to date; account opening documents of the said accounts; list of signatories, past and present, among other documents specified in that application and a restraining order directed at the Defendants from withdrawing, transferring, or in any manner dealing with the funds eld in the bank account operated by the 5th Defendant’s bank account No. 0100005055622 at Stanbic Bank Kenya Limited, among other orders sought in that application. 2.It is claimed that the money in that bank account belongs to the residents and owners of the Applicant; that the Defendants have failed to render any account or provide financial records for the past 8 years; that they have not issued any receipts for payments for that period; that they have failed to pay taxes to KRA for that period; that they continue to have full access to and control over the said funds and that the identity of the signatories is disputed. It is claimed that the documents sought are in the exclusive possession of Stanbic Bank Kenya Limited and are necessary for the fair determination of this suit. 3.The PO is based on the grounds summarized as follows: that the Plaintiff lacks locus standi to bring these proceedings against the Defendants; that these proceedings relate to the management of a limited liability company and was filed in contravention of the directions of the Chief Justice dated 18th November 1997 that classified matters relating to merging of companies to be deemed to be commercial matters that ought to be filed in the Commercial Division; that the case does not pertain to a suit contemplated under Article 162(2) (b) of the Constitution and that the suit is sub judice in relation to Nairobi ELC No. 047 of 2026, Nine Sisters Home Owners and Residents Karen Association v Fresh Living and Bernard Ochieng Asoro and others. Parties’ submissions 4.This court directed that the PO should be argued orally but this was changed to written submissions. In support of the PO, the 1st to 6th and 8th and 9th Defendants filed submissions dated 2nd June 2026. They have submitted on the jurisdiction of this court to entertain this suit; on the suit being barred by the operation of the doctrine of sub judice and the suit being fatally defective for lack of verifying affidavit to the Plaint. 5.They submitted that this court lacks jurisdiction to entertain this matter, which matter ought to be heard in the Commercial and Tax Division for reasons that it relates to the management of the Nine Sisters Apartments Karen, a limited liability company. They submitted that by virtue of ELC No. 047 of 2026, this matter is sub judice and that the Plaintiff is abusing the court process by bringing two suits based on the same subject matter and the same parties. They have submitted that the Plaintiff lacks capacity to file this suit and therefore the suit is fatally defective for reasons that the amended plaint dated 1st April 2023 was not accompanied by a Verifying Affidavit as required under Order 3, rule 2 of the Civil Procedure Rules. 6.The defendants have submitted that the PO ought to be upheld and the suit struck out with costs to them. 7.The Plaintiff’s submissions in opposition to the PO are dated 26th May 2026. The Plaintiff has submitted on the following issues:i.Whether the Plaintiff has locus standi.ii.Whether the suit concerns management of a company.iii.Whether this court has jurisdiction.iv.Whether the suit is sub judice. 8.It was submitted that the issue of locus standi has been overtaken by events because after the PO was filed, the Plaintiff amended the Plaint before the pleadings were closed and before the Defendants filed their defence and that the amended plaint shows that the Plaintiff is one Nicholas Ndiso, the Chairman of Nine Sisters Home Owners and Residents Karen Association, suing as the authorized representative of the members of the Association pursuant to authority granted by the Board of Directors. 9.It was submitted that the issue is the plaintiff has authority to represent the Association’s members, which is a matter of evidence and therefore this argument fails to meet the threshold of a PO as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, among other authorities. It was submitted that the amended plaint supersedes the original plaint; that any objections directed at the original plaint is rendered moot upon the lawful filing of the amended plaint and therefore this issue is devoid of merit. 10.On whether the suit relates to the management of a company, it was submitted that the Defendants have misunderstood the Plaintiff’s cause of action; that the Plaintiff is not challenging issues related to the internal affairs of the 5th Defendant or seeking any relief under the Companies Act; that the Plaintiff’s claim is founded on the collection, custody, management and accounting of service charge funds collected from homeowners and residents of Nine Sisters Apartments and the reliefs sought are ordinary causes of action based on fiduciary obligations, accountability, unjust enrichment and equitable remedies. 11.On whether this court has jurisdiction, it was submitted that this court has jurisdiction to hear and determine this matter and that this matter does not belong to the Environment and Land Court as it does not relate to a claim falling under Article 162(2)(b) of the Constitution. 12.On whether the suit is sub judice, the Plaintiff has opposed the claim by the Defendants that this suit is barred by the doctrine of sub judice by virtue of ELC No. 047 of 2026. The Plaintiff has relied on section 6 of the Civil Procedure Act and submitted that for sub judice to apply, the matter in issue must be directly and substantially the same as the matter in issue in the previously instituted suit; that the burden rests on the Defendants that the issues, causes of action and reliefs sought are substantially identical, which the Defendants have failed to do; that the ELC matter concerns the issue of who has lawful authority and mandate to manage Nine Sisters Apartments, while the issues in this case are different in that they relate to whether the Defendants lawfully became signatories to the service charge account; whether they hold the residents’ funds in a fiduciary capacity, among other issues raised which cannot be resolved by the determination of the ELC case. 13.The Plaintiff submitted that the Defendant’s PO does not raise pure points of law. Instead, it requires the court to investigate disputed factual matters relating to authority, representation, management, control of funds, fiduciary obligations and accounting, which issues can only be determined upon the production of evidence and a full hearing. It was submitted that the PO does not meet the threshold of Mukisa Biscuit case and other authorities on what 14.The Plaintiff urged this court to dismiss the PO with costs and allow the suit to proceed to trial on merits. 15.The 7th Defendant did not oppose the PO and did not submit on it. Analysis and determination 16.I have considered the PO and parties’ arguments. In Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, the court defined what amounts to a PO in the following terms:“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 … [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’ . . .” 17.The instant PO questions the jurisdiction of this court to try this matter for the reasons that the Plaintiff lacks locus standi to bring this suit. It is claimed that the matter relates to a company and therefore the right Court/Division is the Commercial and Tax Division. Further it is claimed that this case is sub judice by virtue of the ELC Case No. E047 of 2026. 18.I have considered whether the PO raised in this matter meets the threshold of Mukisa Biscuits case. To determine whether the Plaintiff has locus standi to bring this suit, I have considered rival submissions. I have noted the Amended Plaint. It lists Nicholas Omondi Ndiso as the Plaintiff suing as the Chairman and authorized representative of the original Plaintiff. To determine whether the Plaintiff has the authority to sue in that capacity, this court will require evidence to that effect. 19.I have considered whether this matter relates to the management of a company or not, this court will again require evidence for or against that issue. What can be seen from the Amended Plaint is allegations of fraud and breach of fiduciary duty on the part of the Defendants. The reliefs sought relate to the operations of an account held at Stanbic Bank and accounting of the operations of that account, among other reliefs stated in the Amended Plaint. 20.The onus is placed on the 1st to 6th and 8th and 9th Defendants to demonstrate that the PO they raised meets the threshold established. It is my considered view, after taking into account the totality of all the arguments of the parties, that the said Defendants have not met the threshold of a PO. 21.Consequently, it is my finding that the PO raised in this matter cannot stand and is hereby dismissed for want of merit with costs to the Plaintiff. 22.It is so ordered. DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JUNE 2026.S. N. MUTUKUJUDGE