https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9936

Wambui v Comat Merchants Limited (Insolvency Petition E058 of 2024) [2026] KEHC 9936 (KLR) (Commercial and Tax) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 9936 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Insolvency Petition E058 of 2024 BK Njoroge, J May 14, 2026 Between Edward Ndung’u Wambui Petitioner and Comat Merchants Limited Respondent Ruling 1.The Petitioner filed the Petition dated 6th August, 2024 seeking to liquidate the Respondent due to its inability to pay its debts pursuant to the Decree issued on 22nd August, 2019 in the sum of Kenya Shillings Seventy-Eight Million One Hundred and Seventy-Three Thousand Six Hundred and Fifty-Five (Kshs. 78,173,655). Further, a Party and Party Bill of Costs taxed at Kenya Shillings One Million Nine Hundred and Eighty-Five Thousand Eight Hundred and Sixty-Five (Kshs. 1,985,865/=) on 15th December 2023, and a Certificate of Taxation subsequently issued on 22nd February 2024. 2.In response, the Respondent filed the Preliminary Objection dated 26th June, 2025 on the following grounds:a.The Court has no jurisdiction to hear this petition as the same is res judicata; the issues raised herein were substantially in issue and conclusively determined in Environment and Land Court Case No. 281 of 2015 Francis Kanyanju Mwangi versus Mugo Gitari alias Julius Mutugi Mucheru & 3 others vide a ruling delivered on 20th December 2022.b.The Petition seeks to appeal the ruling of the Environment and Land Court which is unconstitutional, and thus any orders issued therein will be in vain and prejudicial to the Respondent.c.The Petition seeks to defeat the principle of finality in law. Issues for determination 3.After considering the Objection and the written submissions the Court finds that there is only one issue for determination:a.Whether the Preliminary Objection is merited. Analysis 4.The parameters of 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…” 5.It was the Objector’s position that the present Petition is barred by the doctrine of res judicata, the issues therein having been conclusively adjudicated by a Court of competent and concurrent jurisdiction. To entertain the instant proceedings would not only offend the principle of finality in litigation but would also amount to an abuse of the Court process. 6.The Petitioner argued that the Preliminary Objection is incompetent as it does not delineate a pure point of law arising by clear implication out of the pleadings, but would require the Court to ascertain the particular details elsewhere, apart from the pleadings. 7.The Supreme Court reiterated in Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others (2013) eKLR, as follows:“… 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….” 8.Going by the above decisions, it is not proper to raise a ground 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. 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 to enable the court to determine whether the current suit is res judicata. See George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR). 9.The upshot is that the Preliminary Objection lacks merit and is hereby overruled and dismissed. 10.As to costs, the same lie at the discretion of this Court. Costs ordinarily follow the event. The event herein is that the Preliminary Objection has been dismissed. The Petitioner as the successful party is entitled to cost. Determination 11.The Respondent’s Notice of Preliminary Objection dated 26th June, 2025 is hereby overruled and dismissed for lack of merits. 12.The Costs thereof are awarded to the Petitioner. 13.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 14TH DAY OF MAY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Obura for the Petitioner.Miss Njeri Kariuki holding brief for Mr. Githinji for the Respondent.Ms. Susan Nzioka - Court Assistant.