https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7809

Nyakundi & 2 others v Morara t/a Morara Ngisa & Co. Advocates & 7 others (Commercial Case E517 of 2024) [2026] KEHC 7809 (KLR) (Commercial and Tax) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 7809 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E517 of 2024 BK Njoroge, J June 9, 2026 Between Felix Mecha Nyakundi 1st Plaintiff Festemagra Investment Limited 2nd Plaintiff Stellah Nyaboke Otwori 3rd Plaintiff and Ngisa Ronald Morara t/a Morara Ngisa & Co. Advocates 1st Defendant Oeri Alice Nyomenda 2nd Defendant Ngala Stephen Cosmas 3rd Defendant Nyakundi Stephen George 4th Defendant Caroline Esendi Rakama 5th Defendant H.C. Koech 6th Defendant Adan Mohamed 7th Defendant Richard Langat 8th Defendant Ruling 1.This Ruling is in respect of a Notice of Preliminary Objections raised by the 1st Defendant and the 2nd Defendant. It is principally as to whether the suit is res judicata or whether the 1st and 2nd Defendants were wrongly joined to this case. The Defendants have also filed various applications seeking to have the Plaintiffs’ suit struck out. The Court will undertake to deliver a single Ruling that will cover all the Objections and the Applications. Background Facts 2.The 1st Defendant filed the Preliminary Objection dated 25th September, 2024 on the following grounds;a.This suit is res judicata as the same issues between the same parties were raised in another suit, namely MILIMANI ELC 74 of 2018 which has been heard and determined.b.The Plaint is fatally defective and bad in law.c.The Plaintiffs’ suit is an abuse of the court's process, is frivolous and vexatious and should be dismissed with costs. 3.Further, the 2nd Defendant also raised a Preliminary Objection dated 17th January, 2025 on the following grounds:Limitation:The Plaintiff has pleaded that the material instructions, payments and transactions complained of occurred “on or about 12th May 2014 and the year 2016 or thereabout” and that the alleged sums were paid during that period.The Plaintiff has further pleaded that by July 2016 the Plaintiffs had discovered the dispute and took steps by instituting proceedings arising from the same subject matter (as pleaded in the Plaint by reference to the prior ELC proceedings).On those pleaded dates, any civil claim for recovery of monies and/or damages founded on the pleaded transaction, alleged misrepresentation and/or alleged fraud is barred by statute under the Limitation of Action Act (Cap. 22), and the suit is therefore incompetent and liable to be struck out in limine.Jurisdiction / Non-justiciable Reliefs:2.1.The Plaint prima facie seeks reliefs that are disciplinary /criminal/ regulatory in character, including condemnation for perjury, recommendation for disbarment, and declarations of unfitness to hold public office.2.2.The Court, sitting as a commercial court determining a commercial claim, lacks jurisdiction to grant such reliefs, which are nonjusticiable in these proceedings and fall, if at all, within distinct statutory and institutional processes.2.3.The Plaint is therefore incompetent to the extent it seeks such reliefs, and the said prayers are liable to be struck out in limine; and to the extent such prayers are integral to the pleaded cause of action and reliefs, the suit is liable to be struck out.Abuse Of Process / Collateral Attack:3.1.The Plaintiff pleads that there were prior proceedings in Nairobi ELC Case No. 74 of 2018 (formerly HCC No. 288 of 2016) concerning the same suit properties and that the Environment and Land Court rendered a final judgment cancelling the Plaintiffs’ titles and reverting ownership to NSSF upon findings of fraud/illegality (as pleaded).3.2.The Plaintiff further pleads that the present suit is brought as a sequel to, and in consequence of, the said final judgment (including the pleaded assertion that the present “cause of action” arose upon that judgment).3.3.On those pleadings, the present suit is an impermissible collateral attack upon, and/or an attempt to circumvent, a final judgment of a court of competent jurisdiction by re-packaging the same underlying controversy in a different forum and against different parties, contrary to the doctrine of finality in litigation and issue estoppel.3.4.The suit is therefore an abuse of the process of the Court and is incompetent in limine.Ex Turpi Causa / Illegality On The Face Of The Plaint:4.1.The Plaintiff pleads that the impugned acquisition of the suit properties was found by the Environment and Land Court to have been fraudulent/illegal, leading to cancellation of the Plaintiffs’ titles and reversion to NSSF (as pleaded).4.2.Despite pleading that the transaction was judicially determined to be tainted by fraud/illegality, the Plaint seeks the assistance of this Court to enforce civil recovery and damages premised upon, and inseparable from, that transaction.4.3.As a matter of public policy and law, a court will not lend its aid to a claim founded upon illegality (ex turpi causa). The suit is therefore incompetent on the face of the Plaint and liable to be struck out in limine. 4.The Court has also considered the 4th Defendant’s application by way of a Notice of Motion dated 21st May, 2025. It seeks the following orders;1.That the name of the 4th Defendant/Applicant be struck out from the suit for being improperly joined.2.That the costs of this application and the suit as against the 4th Defendant/ Applicant be borne by the Plaintiffs’/Respondents. 5.The 5th, 6th, 7th and 8th Defendants/ Applicants have also filed an application dated 9th May, 2025 seeking striking out of the suit as follows;1.That the Honourable Court be pleased to issue an order dismissing the Plaintiffs/ Respondents suit instituted vide the Plaint dated 29th August, 2024 for being res judicata and time barred.2.That in the alternative to prayer (1) above, the Honourable Court be pleased to issue an order striking out the 5th, 6th, 7th and 8th Defendants/Applicants form the suit.3.That the costs of this application and of the suit be borne by the Plaintiffs’/Respondents. 6.Lastly, the 2nd Defendant/ Applicant has also filed an application dated 17th February, 2026 seeking the following;1.That the name of the 2nd Defendant/Applicant, OERI ALICE NYOMENDA, be and is hereby struck out from these proceedings for misjoinder.2.That the Plaintiffs’ Suit against the 2nd Defendant/Applicant be and is hereby struck out pursuant to Order 2 Rule 15(1)(a)(b)(c)(d) for disclosing no reasonable cause of action and for being an abuse of the court process. Issues for determination 7.The Court has carefully considered the Preliminary Objections. The Court has equally considered the applications filed, the responses and the written submissions. The Court frames two issues for determination.a.Whether the Preliminary Objections are merited.b.Whether the interlocutory applications seeking striking out of the suit should be allowed. Analysis 8.A Preliminary Objection must only raise issues of law as set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. At page 700, Law, JA 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 the contract giving rise to the suit to refer the dispute to arbitration.” 9.At page 701, Sir Charles Newbold, P added: -“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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…” Whether the Preliminary Objections are merited. 10.The Court takes notice that among the grounds cited by the Defendants in their objections are res judicata. That the present suit is an impermissible collateral attack upon, and/or an attempt to circumvent, a final judgement of a Court of competent jurisdiction. This is by re-packaging the same underlying controversy in a different forum and against different parties. That this is contrary to the doctrine of finality in litigation and issue estoppel. 11.Further, the 2nd Defendant raised the ground of limitations. She argued that the Plaintiffs plead that the material instructions, payments, and transactions complained of occurred on or about 12th May, 2014 and in the year 2016 or thereabout. She further acknowledges that by July, 2016 the Plaintiffs had discovered the dispute and had taken steps by instituting proceedings arising from the same subject matter. In the circumstances, any civil claim for recovery of monies and/or damages founded upon the said dealings, whether framed as a claim for refund, damages, misrepresentation, or fraud-based recovery, is prima facie statute-barred. This is pursuant to the provisions of the Limitation of Actions Act. 12.The issues raised by the Defendants require fact finding thus not pure points of law. In this case the Plaintiffs contest the facts for instance on the issue of time limitation. The Plaintiffs argued that the issue of fraud against the staff of the NSSF was a determination of the Court which was delivered on the 20th day of February, 2024. That hence time started running on that material day. This is because the Plaintiffs had knowledge of the said fraud after the determination of that case and nullification of the title of the 4 house units in favour of NSSF. 13.The Supreme Court reiterated in Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others (2013) eKLR, is:“… 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… it cannot be raised if any fact has to be ascertained….” 14.Going by the above decisions, it is not proper to raise the grounds of res judicata by way of preliminary objection for the sole reason that the facts need to be ascertained, thus ceasing to be a pure point of law. See (George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR)). 15.The upshot is that the Preliminary Objections lack merit and are hereby dismissed. Whether the interlocutory applications seeking striking out should be allowed. 16.The Court takes note that all the applications seek the striking out of the suit or the name of a Defendant. This Court is being called upon the conduct a mini trial of facts and reach at a determination as whether to terminate proceedings against some of the Defendants at this point in time. 17.This Court notes that the applications call into play the exercises of discretion. 18.The Court would hesitate in a dispute of this nature to strike out a party or dismiss the suit on grounds of res judicata or limitation at this point in time. The issues raised by this case are convoluted. They are best resolved through a plenary hearing. This Court would be keen to hear the evidence presented by all the parties. Should the evidence led lead to the conclusion that some of the parties were non suited, or the suit is defeated by limitation or res judicata, this Court will not hesitate to return such a verdict. However, as parties are so entwined in some of the transactions, it is best that evidence be presented by way of a trail. 19.It is key that the Court exercises the draconian remedy of striking out of pleadings or parties to a suit, sparingly and only in the clearest of cases. The facts in this case are hotly contested making it a poor candidate for striking out. This Court is not laying the law that it cannot strike out a party from a suit or hold that a suit is res judicata or defeated by limitation. What this Court is stating that it would prefer to hear this case on merits in exercise of its discretion. The Court is also fully alive to the jurisprudential shift post the current Constitution, to hear matters on merits and avoid technical justice. 20.This Court having considered the applications and the responses, favours granting the parties their day in Court. 21.The Court follows the decision of the Court of Appeal in DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR) where it stated as follows;“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. Ifa suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 22.The Court declines to allow the Motions and directs that the suit be prepared for trial. 23.As to costs the same lie at the discretion of this Court. The Court is of the considered view that there be no orders as to costs. Determination 24.The 1st Defendant’s Preliminary Objection dated 25th September, 2024 and the 2nd Defendant’s Preliminary Objection dated 17th January, 2025 are overruled and struck out. 25.The 4th Defendant’s application by way of a Notice of Motion dated 21st May, 2025; the 5th, 6th, 7th and 8th Defendants/ Applicants’ application dated 9th May, 2025; and the 2nd Defendant/ Applicant’s application dated 17th February, 2026 are all HEREBY dismissed for lack of merits. 26.There shall be no orders as to costs. 27.All parties to prepare for a trial in this suit. 28.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 09TH DAY OF JUNE, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Ayora for the Plaintiffs.Mr. Makori for the 1st for the Defendant.Mr. Akhaabi for the 2nd Defendant.Miss Nafula for the 4th Defendant.Mr. Muuo for the 5th, 6th, 7th and 8th Defendants.Mr. John Paul - Court Assistant.