Solar Africa (Mauritius) Limited v Hamptons Hospital Limited (Commercial Case E066 of 2025) [2026] KEHC 7031 (KLR) (18 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **COMMERCIAL CASE NO. E066 OF 2025** **SOLAR AFRICA (MAURITIUS) LIMITED …………………...………………………. PLAINTIFF** **VERSUS** **HAMPTONS HOSPITAL LIMITED ……………………………..…………………. DEFENDANT** **RULING** 1. Before Court is the Defendant’s Notice of Preliminary Objection dated 13th October 2025 challenging the competency of the Plaintiff’s suit on the grounds that the plaint offends various provisions of the Civil Procedure Act and the contractual documents executed between the parties, namely the Asset Purchase and Financing Agreement dated 3rd June 2020, the Deed of Novation dated 11th April 2021, and the Assignment and Guarantee Agreement together with the Third Addendum dated 10th August 2023. 2. The Defendant further contends that the plaint discloses no reasonable cause of action against it because it was allegedly not a party to the agreements forming the basis of the suit. 3. The Plaintiff opposes the objection and argues that the objection raises contested factual matters requiring evidentiary interrogation and therefore does not qualify as a proper preliminary objection within the meaning of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.** **Issues for Determination** 1. The sole issue for determination is whether the Defendant’s Notice of Preliminary Objection raises pure points of law capable of disposing of the suit without the Court having to ascertain disputed facts. **Analysis and Determination.** 1. **In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, Law JA stated that: “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.” 1. The Supreme Court **in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR** reaffirmed the foregoing principles and emphasized that a proper preliminary objection must raise a pure point of law capable of disposing of the matter without recourse to evidence. 2. I have carefully considered the grounds raised by the Defendant. 3. The Defendant’s objection is substantially premised on the interpretation and legal effect of several contractual documents. The Defendant alleges that the Plaintiff’s suit offends clauses contained in those agreements and further alleges that the Defendant is not a party to the agreements relied upon by the Plaintiff. 4. However, from the pleadings before Court, the Plaintiff expressly pleads that: 5. the Defendant executed an Assignment and Guarantee Agreement; 6. the Defendant subsequently entered into the Third Addendum dated 10th August 2023; 7. the Defendant admitted liability and undertook to settle the debt; and 8. the Defendant remains indebted to the Plaintiff in the amount claimed. 9. These assertions are expressly disputed by the Defendant. 10. The Court cannot determine whether the Defendant was or was not a party to the agreements without examining the agreements themselves, the signatures thereto, the surrounding transactions, and the conduct of the parties. 11. Equally, the Court cannot determine whether the suit offends the cited contractual clauses without interrogating evidence and interpreting the contractual framework in full. Those are not pure points of law. 12. In **Oraro v Mbaja [2005] eKLR*,*** the court cautioned that: “Anything that purports to be a preliminary objection must not deal with disputed facts.” The learned Judge further observed that where facts require proof through evidence, the matter ceases to be a true preliminary objection. 1. Further, the Defendant has referred to clauses allegedly contained in the agreements but has not demonstrated that those clauses expressly oust the jurisdiction of this Court or render the suit incompetent on the face of the pleadings alone. 2. To the extent that the objection may be founded on an arbitration or dispute resolution clause, such a contention would still require the Court to ascertain: 3. whether the Defendant was bound by the agreements; 4. whether the dispute falls within the scope of the clause; and 5. whether the procedural requirements under Section 6 of the Arbitration Act were satisfied. 6. Those are matters that cannot properly be determined in limine without evidence. 7. The ground that the plaint discloses no reasonable cause of action equally fails as a preliminary objection because the plaint on its face pleads a debt claim arising from contractual arrangements allegedly executed by the Defendant. Whether those allegations are ultimately provable is a matter for trial. 8. The Court is therefore satisfied that the Defendant’s objection is intertwined with contested facts and evidentiary matters unsuitable for determination by way of a preliminary objection. 9. Accordingly, the Notice of Preliminary Objection dated 13th October 2025 is hereby dismissed with costs to the Plaintiff. 10. The Defendant shall file and serve its Statement of Defence within fourteen (14) days from the date hereof. 11. Right of Appeal 30 days 12. Costs in cause. 13. Mention 15.7.2026 for directions on the main suit. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 18TH DAY OF MAY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angong’a/Velma Mr. Bett for Ms. Opiyo for the Plaintiff present.