Majani Estates Limited v Muthoni Nkonge & 8 others [2020] KEELC 730 (KLR)

Relying on Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if facts must be ascertained or discretion exercised. The section 6 objection was treated as such a legal issue going to the root of whether there is a competent suit.

Section 6 requires that the matter in issue be directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title. Although conflicting status quo orders had issued in the two matters, the plaintiff was not a party to the succession cause, so section 6 was not satisfied; the undesirability of conflicting orders could not make the suit res sub judice.