https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8134

Omondi & another v Nairobi Channels Auctioneers & 2 others (Commercial Case E007 of 2026) [2026] KEHC 8134 (KLR) (Commercial and Tax) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8134 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E007 of 2026 BK Njoroge, J June 11, 2026 Between Emmey Atieno Omondi 1st Plaintiff Jack David Odhiambo 2nd Plaintiff and Nairobi Channels Auctioneers 1st Defendant Grace Muthoni Gatundu 2nd Defendant Black Bird Storage & Auction Yard 3rd Defendant Ruling 1.The Plaintiffs filed the suit dated 30th November, 2025 as well as a Notice of Motion dated 30th November, 2025 whereby the Applicants sought the following orders;1.Spent.2.That this matter be certified as raising substantial questions of law touching on the interpretation and application of rule 12 (1) (b), Auctioneers Rules as read with order 5, rules 8 (1), 10 (1), 12 and 15 given order 6, rule 3 (2), Civil Procedure Rules on the definition of “agent”, “adult person”, “address for service” and “premises where the goods are attached or repossessed” and on whether a proclamation of attachment or any statutory notice purportedly served on some place or person or through some mode of service other than the contracted address, person or medium of service is deemed to have been duly served on the owner of the goods.3.That pending the inter partes hearing and determination of this suit an order be and is hereby issued of a temporary injunction restraining the Respondents, whether by themselves or through their employee(s), agent(s) or other person(s), from using, operating, wasting, damaging, selling, disposing, transferring, alienating or in any other manner whatsoever dealing with the suit motor vehicle, as the case may, be except otherwise as directed by this Court.4.That pending the inter partes hearing and determination of this suit an order be and is hereby issued of a mandatory injunction directing the 2nd Respondent, at her own cost and without prejudice whatsoever to the Applicants, to cause the suit motor vehicle to be returned and delivered “as is” back to the Black Bird Storage & Auction Yard in Kisumu within 7 days hereof and in default thereof the Traffic Commandant is directed to impound and detain the suit motor vehicle for onward transfer to the Central Police Station in Kisumu County for due processing.5.That pending the inter partes hearing and determination of this suit an order be and is hereby issued of a mandatory injunction directing the 2nd Respondent to surrender to and deposit into the custody of this Court within 7 days hereof the original and current registration certificate(s) of the suit motor vehicle in her possession and in default thereof the Officer Commanding the Central Police Station in Nairobi County is directed to arrest and remand her in custody pending her transfer to the Central Police Station in Kisumu County for due processing for fraud and stealing.6.That pending the inter partes hearing and determination of this suit an order be and is hereby issued directing the 1st and 3rd Respondents to surrender to the custody of this Court within 7 days hereof the motor vehicle engine of serial number 3ZR-A743219V, the GoodKing 408 piece integrated tool box, the Chloride Exide NS70 Powerlast battery and the suitcase containing the personal effects of the 2nd Applicant that were contained on board the suit motor vehicle at the time of seizure on 07/12/2023, and in default thereof the two be arrested and charged for stealing.7.That pending the inter partes hearing and determination of this suit an order be and is hereby issued directing the 1st and 3rd Respondents to surrender to the custody of this Court within 7 days hereof the motor vehicle engine of serial number 3ZR-A743219V, the GoodKing 408 piece integrated tool box, the Chloride Exide NS70 Powerlast battery and the suitcase containing the personal effects of the 2nd Applicant that were contained on board the suit motor vehicle at the time of seizure on 07/12/2023, and in default thereof the two be arrested and charged for stealing. 7. That pending the inter partes hearing and determination of this suit, an order be and is hereby issued directing the Directorate of Criminal Investigations (DCI) to forthwith launch, commence and undertake forensic, perjury and fraud investigations into the purported proclamation notice of attachment allegedly served upon the 2nd Applicant on 28/11/2023 and the authenticity of the purported public auction allegedly conducted on 18/03/2025 by one Muniu Mungai and file its report of findings to this Court within 21 days hereof.8.That pending the inter partes hearing and determination of this suit, an order be and is hereby issued directing the Directorate of Criminal Investigations (DCI) to forthwith launch, commence and undertake forensic, forgery and fraud investigations into the purported transfer of ownership of the Motor Vehicle Reg. No. KCV 087M in favor of Ngao Credit Limited and Grace Muthoni Gatundu without a valid transfer of ownership form duly signed by the 1st Applicant and file its report of findings to this Court within 21 days hereof.9.That pending the hearing and determination of this suit, an order be and is hereby issued directing the Directorate of Criminal Investigations (DCI) to forthwith launch, commence and undertake forensic and fraud investigations into the purported registration of security right against the motor vehicle Reg. No. KCV 087M on 04/09/2023 in favor of Ngao Credit Limited without a valid security agreement duly executed by the 1st Applicant and file its report of findings to this Court within 21 days hereof.10.That the costs of this application be borne by the Respondents. 11.In response, the Defendants filed the Preliminary Objection dated 20th January, 2026 on the following grounds;a.This matter is barred by the principle of res judicata as the same was heard and determined on merits in Jack & Emmey Atieno Omondi v Ngao Credit Limited and Blackbird Auctioneers (Kisumu MCCC/E352/2023).b.This matter is barred by the principle of sub judice as there exists a pending appeal over the subject matter in Emmey Atieno Omondi & Jack David Odhiambo Vs Ngao Credit Limited (Kisumu HCCA E082 of 2025).c.The Court lacks the pecuniary jurisdiction to hear and determine this matter. Issues for determination 2.The Court has carefully considered the Notice of Objection, the written submission as well as the oral highlights by Counsel for the Respondent and Mr. Jack David Odhiambo acting in person. The Court frames a single issue for determination as;a.Whether the Preliminary Objection is merited. Analysis 3.The parameters for consideration of a Preliminary Objection are now well settled. 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.”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…” 4.The Defendants raised the Preliminary Objection on three grounds. Firstly, it was the Defendants’ position that the doctrine of res judicata bars the present suit. That the issues therein having been conclusively heard and determined on merits in Jack & Emmey Atieno Omondi v Ngao Credit Limited and Blackbird Auctioneers (Kisumu MCCC/E352/2023). 5.Secondly, it was argued that the instant matter is barred by the doctrine of sub judice, and the Court ought to down its tools with immediate effect. 6.Further to the above, the Defendants asserted that the Court lacks pecuniary jurisdiction to hear and determine the suit. This is as Section 4 of the Civil Procedure Act and Section 7(1) of the Magistrates’ Courts Act limit the Court’s jurisdiction where the value of the subject matter falls within the pecuniary jurisdiction of the Magistrates’ Court. The subject motor vehicle was valued at KES. 1,050,000 in 2023. The Plaintiffs’ claim for compensation and damages amounts to KES. 12.6 million. Thus, bringing the total value of the claim to well below the KES. 20 million jurisdictional threshold of the Magistrates’ Court. Therefore, the dispute ought to have been filed before the Magistrates’ Court and this Court is consequently devoid of jurisdiction and should strike out the suit. 7.The Plaintiff argued, in response, that the Preliminary Objection is incompetent as it does not delineate a pure point of law.1.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….”2.Going by the above decisions, it is not proper to raise a ground of res judicata or sub judice by way of Preliminary Objection. This is for the sole reason that the facts need to be ascertained. If facts have to be ascertained, it ceases to be a pure point of law. It becomes a factual matter. As it has been said time and again, the best way to raise a ground of res judicata is by way of notice of motion, where pleadings are annexed. This is to enable the Court to determine whether the current suit is res judicata. (George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR))3.Be as it may, the Objection does not raise pure points of law, but would require the Court to ascertain the particular details elsewhere, apart from the pleadings. The issues raised are best addressed by filing substantive Applications.4.The upshot is that the Preliminary Objection lacks merit and is hereby dismissed.5.As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is minded to award the costs of the Preliminary Objection to the Plaintiffs. Determination 8.The Defendants’ Notice of Preliminary Objections dated 20th January, 2026 is overruled and hereby dismissed. 9.The Costs thereof are awarded to the Plaintiffs. 10.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 11TH DAY OF JUNE, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Jack Omondi the 2nd Plaintiff acting in Person.Mr. Maina for the Defendants.Mr. John Paul - Court Assistant