Gilgil Treatment Industries Ltd v I & M Bank Limited & another [2018] KEELC 2970 (KLR)

Applying Mukisa Biscuit, a preliminary objection must raise a pure point of law argued on the assumption that the facts pleaded by the other side are correct. The 1st defendant relied on the existence and nature of proceedings in Naivasha HCCC No. 9 of 2016 and Nyeri Civil Application No. 7 of 2016, evidence introduced through the objection itself. The court held this fatal and dismissed the objection with costs to the plaintiff.

The properties the plaintiff claimed were part and parcel of Gilgil Township Block 2/210 as at 10th October 2013, before the plaintiff's lease, and were subject of the Naivasha suit between related companies sharing the director Divyesh I. Patel. An injunction against the chargee's statutory power of sale had already been refused there by Meoli J. Under Section 7 of the Civil Procedure Act the matter was barred, and under Section 6 the rest of the case belonged to the Naivasha court.

The court restated that the applicant must establish a prima facie case with probability of success, that damages must be inadequate, and that in doubt the balance of convenience applies. Citing Nguruman, the three conditions are separate, distinct and logical hurdles to be surmounted sequentially; failure at the first stage dispenses with consideration of the rest. The application was, however, determined on res judicata rather than on the merits of the test.