https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9281

Spire Bank Ltd v Kinjunje Gardens Ltd & 5 others (Civil Case E110 of 2021) [2026] KEHC 9281 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9281 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E110 of 2021 PM Mulwa, J June 25, 2026 Between Spire Bank Limited Plaintiff and Kinjunje Gardens Limited 1st Defendant Patrick Njuguna Kang’Ethe 2nd Defendant Margaret Wambui Kang’Ethe 3rd Defendant Edward Njuguna Kang’Ethe 4th Defendant James Kireru Kang’Ethe 5th Defendant Geo Entertainment Limited 6th Defendant Ruling 1.Before the court for determination is the Notice of Preliminary Objection filed by the 1st – 5th Defendant dated 13th February 2026. The defendants seek to dismiss the suit on the following grounds:i.The Plaintiff lacks locus standi to institute or prosecute the suit,ii.The loan forming the subject matter of the proceedings was lawfully acquired and vested in Equity Bank Kenya.iii.The Plaintiff is neither the owner nor the legal holder of the debt sued upon.iv.The Plaintiff has not pleaded or demonstrated any agency, trusteeship, or statutory authority entitling it to sue on behalf of Equity Bank, andv.The suit is fatally defective, incompetent, and an abuse of the court process. 2.The Plaintiff opposes the Preliminary Objection, contending that the issues raised by the Defendants do not constitute a proper Preliminary Objection as they require the ascertainment of facts. The Plaintiff submitted that the matters raised go to the merits of the case and cannot be determined on summary judgment without a full hearing on the evidence. 3.The Preliminary Objection was argued orally, with the plaintiff filing submissions dated 17th February 2026. 4.The law on what constitutes a preliminary objection is now settled. The locus classicus on the subject remains the decision of the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. In that case, Law JA stated thus:“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." 5.The Supreme Court of Kenya endorsed this principle in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] KESC, where the Court reiterated that for a Preliminary Objection to be sustainable, it must raise a pure point of law and must be based on uncontested facts 6.In Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR, it was held that:“Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 7.For a preliminary objection to succeed, it must satisfy the following tests: it must only raise a pure point of law, it is argued on the assumption that all the facts pleaded by the other side are correct, and lastly, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should dispose of the suit if successful. 8.The issue of locus standi is undoubtedly a point of law. However, the question of whether the Plaintiff has locus standi in this matter requires the ascertainment of several facts, especially whether the loan was indeed acquired and vested in Equity Bank Kenya; the nature of the acquisition (whether by transfer, assignment, or other means), whether the Plaintiff has any agency, trusteeship, or statutory authority to sue on behalf of Equity Bank, the terms of any agreement between the Plaintiff and Equity Bank regarding the loan; and whether the Plaintiff has any legal or equitable interest in the debt. 9.The Plaintiff has pleaded that it is the creditor and the loan was advanced by the Plaintiff. This is a fact that must be taken as correct for purposes of the Preliminary Objection. I find that the Preliminary Objection as raised fails to meet the threshold of Mukisa Biscuit. The issue of Equity Bank's loan acquisition depends on the nature of the acquisition. 10.For the foregoing reasons, I find the Preliminary Objection dated 13th February 2026 raised contested facts. It thus lacks merit, and the same is dismissed with costs. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.PETER MULWAJUDGEIn the presence of:Mr. Mbaji for PlaintiffMr. Keraya for 1st – 5th DefendantsMr. Kioko for 6th DefendantCourt Assistant: Lispa