Utunzi Limited v Kaur & another

a. The Supporting Afidavit of the Applicant sworn by Genevieve Madeleine Lisbeth Sommes (Hereinafter referred as “Sommes”) on behalf of the Applicant was not proper in law and defective and should be struck out. b. The provision of Section 5 of the Oaths and Statutory Declarations Act, Cap. 15 states that Particulars to be stated in jurat or attestation clause are as follows: “ Every commissioner for oaths before whom any oath of afidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and or what date the oath of afidavit is taken or made.” c). The Supporting Afidavit of the Applicant misled this Honourable Court as the deponent Sommes was abroad and / or not in Diani or Kenya on the date it purported to be sworn before Commissioner of Oaths Kevin Nzumo in Nairobi, Kenya. d). The Supporting Afidavit stated that it was “SWORN at DIANI” on the “20th Day of July 2025” by the said Genevieve Madeleine Lisbeth Sommes, when the deponent was not in Diani, Kwale County, Kenya. e). The Commissioner of Oaths KEVIN NZUMO had stamped the location of the deponent of the Supporting Afidavit of the Applicant as “NAIROBI” in the attestation clause. f). The Applicant and Sommes had prima facie committed the ofience of perjury as the deponent was not present when the afidavit was commissioned. g). The provision of Section 11 of the Oaths and Statutory Declarations Act states that: “ If any person knowingly and wilfully makes any statement which is false in a material particular in a statutory declaration he shall be guilty of an ofience and liable for imprisonment for a term not exceeding two years or to a fine not exceeding two thousand shillings, or to both imprisonment and fine.” III. The Preliminary objection dated 17th November 2025 4. The second Notice of Preliminary objection dated 17th November 2025 was premised upon the provisions of Sections 5 and 11 of the Oaths and Statutory Declarations Act, Cap. 15 and Section 106B of the Evidence Act, Cap. 80 and Section 34, 53 and Regulation 22(5) and 6 of the Kenya Citizenship and Immigration Act 2011, Article 50 of the Constitution of Kenya, 2010). 5. The 1st Defendant prayed that the suit action be struck out with costs on the grounds that: a. The Verifying Afidavit dated 20th July, 2025 of the Applicant was sworn by Genevieve Madeleine Lisbeth Sommes on behalf of the Applicant was not proper in law and defective and should be struck out on the basis of an abuse of process that has caused harm and prejudice to the 1st Defendant and breach of the Oaths and Statutory Declarations Act and Evidence Act. b. The Verifying Afidavit was not sworn by the director of the Plaintifi but in a significantly difierent name. c. The Director of the Plaintifi, on the CR - 12 Form of Utunzi Limited was Lisbeth Sommes. The Verifying Afidavit was sworn by Genevieve Madeleine Lisbeth Sommes who was a stranger to this suit. This was a significant discrepancy in the director’s name that amounts to a lack of authority to sue and raised questions of fraud and mischief. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 2

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d. The director of the Plaintifi, Lisbeth Sommes, left Kenya 15th April 2025 and had not returned to Kenya and could not have “SWORN at DIANI” a Verifying Afidavit or Supporting Afidavit in Kenya on 20th July, 2025. e. The Director of the Plaintifi - Lisbeth Sommes was in violation of the Kenya Citizenship and Immigration Act 2011 and the Plaintifi had no capacity to act. f. The Plaintifi’s director Lisbeth Sommes was a foreign national (French national) who entered Kenya on a tourist visa and never had a Work Permit in respect of the Plaintifi in the Republic of Kenya. g. In absence of a valid Work Permit Lisbeth Sommes could not work in Kenya or manage the Plaintifi and had no capacity to commence or enter this litigation including, signing documents, making decisions and managing stafi and is acting illegally in doing so. h. The Verifying Afidavit (as with the Supporting Afidavit of suit) failed to comply with the provision of Section 106 B of the Evidence Act, Cap. 80 as no Certificate/s of Electronic evidence was filed and a failure to procure the deponent at the commissioning table was fatal. i. A suit that was the same or similar suit as this suit had been filed by the 1st Defendant (Case No. ELC/021/2025) against the Plaintifi prior to this suit and was still pending. j. The Plaintifi had misled the Court in stating in its Plaint (para.24) to wit that:“ There is no other suit pending between the parties herein, and there have been no previous proceedings in any Court on the same subject matter and involving the same parties herein." k. The Plaintifi had filed a Counter - Claim in the prior said suit where it sought the same/similar orders to this present suit This suit was an abuse of process as the Plaintifi was instituting a multiplicity of actions on the same or similar subject matter, against the same opponent, on the same or similar Issues in order to circumvent interlocutory orders against it in the other suit and obtain interlocutory orders against the 1st Defendant. l. The Plaintifi was forum-shopping with this later suit by asking for relief which may have been obtained in the earlier suit. m. The abuse of process was based on bias, malice, misrepresentation and a desire to misuse or pervert the course of justice or the judicial process and to cause harm to the 1st Defendant, which it had in fact caused in bad faith. n. The Verifying Afidavit and the case be struck out in its entirety with costs to the 1st Defendant. IV. Submissions 6. On 20th November 2025, in the presence of all the Counsels for the Plaintifi/Respondent and 1st Defendant/Applicant herein, the Honourable Court directed parties to canvass both the objections and applications simultaneously by way of written submissions. 7. Pursuant to that, all the parties had complied. This court will therefore proceed to render its verdict on its merit acordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 3

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A. The Written Submissions by the 1st Defendant/Applicant 8. The 1st Defendant/Applicants submissions were dated 17th November 2025 and filed by Ashminder Kaur Advocate acting jointly with KMA Advocates. M/s. Kaur Advocate commenced her submissions by providing a brief background of the matter. She stated that in relation to the preliminary objections before court, Counsel submitted that under Section 5 of the Oaths and Statutory Declarations Act, an afidavit made overseas was subject to the Notaries Public Act Cap. 17, Laws of Kenya and must be signed and certified in front of a Notary Public of that overseas jurisdiction. Reference was made to the holding in the case of:- “Dardanelli & 6 others -Versus - Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR) (6th February, 2025) (Ruling)” where the Court held that an afidavit must be sworn in the physical presence of a commissioner of oaths, notary public, or other authorized oficer. An afidavit signed remotely (in another country, scanned, and commissioned in Kenya) and submitted as if sworn locally can be struck out for being a misleading and defective document. 9. The Learned Counsel also submitted on the lack of capacity by the Plaintifi and its director and stated that Under the Companies Act, 2015, every Private Limited Company in Kenya must appoint at least one resident director in order to have capacity to act. That in the case of “Republic v Cabinet Secretary Ministry of Interior & National Administration & another; Jetha (Ex parte) (Judicial Review Application E012 of 2023) [2025] KEHC 15603 (KLR) (31 October 2025) (Judgment)” the Court held that the presence in Kenya of any person who was not a citizen of Kenya, unless authorized under the Immigration Act, was unlawful. But the presence of that person would be lawful if she was in possession of a valid work permit or a valid residence permit or a valid pass. 10. It was submitted that the legal status of a director's actions (signing documents, commencing litigation, instructing stafi) and capacity of the company to act becomes subject to challenge if they are found to be working in Kenya unlawfully. That proper authorization of a director who has legal capacity to work in Kenya was mandatory and not optional for filing a suit on behalf of a company. If the director's capacity to act for the company is legally compromised due to immigration status violations, the authority to initiate legal proceedings can be disputed, rendering the suit a nullity. Therefore, a non-citizen director working illegally in Kenya would not have the legal capacity to conduct managerial functions, including giving instructions, commencing suits, signing afidavits and executing any other company documents. Counsel maintained that the Plaintifis’ sole director since 20th January, 2024 was Lisbeth Sommes, a non-citizen and French national who entered Kenya on visitor’s visa. Sommes never had a Work Permit and could not work in Kenya for the Plaintifi. Therefore, that the director had no locus to sign any documents on behalf of the company. 11. The 1st Defendant also invoked “the doctrine of Res -Sub – Judice” and stated that on 15th February, 2025 an earlier suit was filed against the Plaintifi being “Meadow Oaks Limited & Ashminder Kaur v Utunzi Limited, Lisbeth Sommes, Estate of Carin Damgaard, Karina Arum, Fanta Damgaard, Stella Nyabuti, Leah Wanjiku and Skyes and Colobus Limited, ELC No. 21 of 2025, in the ELC at Kwale before Hon. Justice LL. Naikuni on the same and/or similar matters before this Hon. Court in relation to LR Title No. Kwale/Diani Beach/783. 12. Hence the instant suit could not proceed. The court was urged to allow the preliminary objections before it. B. The Written Submissions by the Plaintifis/Respondents 13. The Law firm of Messrs. Mungai Kamau & Co Advocates filed submissions on behalf of the Plaintifi/ Respondent in relation to the preliminary objections dated 27th November, 2025. Mr. Mungai Kamau https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 4

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Advocate commenced his submission by stating that the objection was fatally defective, could not be sustained, and ought to be dismissed with costs as it seeks to rely on a set of facts as opposed to pure points of law. According to him, it did not meet the mandatory legal requirement and threshold to qualify as a proper Preliminary Objection. 14. The Learned Counsel contended that the Defendant herein laid out points and evidence. They were allegations of facts and not pure law that must be proved and evidence to be tendered in Court for it to make a sound decision. Thereby, the entire Preliminary objection clearly does not meet the threshold provided by law. That any assertion that claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principles, a true Preliminary Objection which the Court should allow to proceed. Where a Court needed to investigate facts, a matter could not be raised as a preliminary point. Anything that purports to be a Preliminary Objection must not deal with disputed facts and must not itself derive its foundation from factual information that stands to be tested by normal rules of evidence. 15. It was submitted that all the Issues raised by the Defendant sought to as to the whether the names of the Plaintifi’s director on the Verifying Afidavit match her names on the CR 12 – Form and whether she was in the country or not, whether the Plaintifi’s director had a Work Permit or not were purely questions of facts that can only be ascertained during the hearing and could not be raised through a preliminary objection. 16. That in addition to the foregoing, the Preliminary Objection herein sought to have this Honorable Court determine Issues of Immigration law, which is not within its jurisdiction as provided by law. All the Issues raised in the said Notice of Preliminary Objection were facts that already contested and did not qualify to be a preliminary objection. 17. In conclusion, the court was asked to find that both the Preliminary Objections were misconceived, a gross abuse of the court process, and it should be dismissed with costs. II. Analysis and Determination 18. I have keenly assessed and read through the pleadings filed by both the Plaintifi/Applicant and the 1st Defendant herein, the Written Submissions, the myriad of cited authorities by the parties, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 19. For the Honorable Court to arrive at an informed, just, fair and reasonable decision, it has crystallized the subject matter emanating from the two ( 2 ) Preliminary Objections dated 17th November 2025 and 25th July, 2025 into the following three [2] Issues for its determination:a. Whether the Preliminary objection raised by the 1st Defendant dated 17th November 2025 and 25th July 2025 meet the laid -down threshold for such objection based on Law and precedents. b. Whether the Preliminary objection raised by the 1st Defendant dated 17th November 2025 and 25th July 2025 are meritorious. c. Who will bear the Costs of the preliminary objection dated 17th November 2025 and 25th July 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 5

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Issue No a). Whether the Preliminary objection raised by the 1st Defendant dated 17th November 2025 and 25th July 2025 meet the laid -down threshold for such objection based on Law and precedents. 20. Under this Sub – heading, the Honourable Court will deliberate on the legal concept “Preliminary Objection” and its legal connotation to matters instituted in Court. In so doing, this court has considered the Preliminary Objections and submissions therein as it keenly assess the meaning and scope of the said concept. According to the Black Law Dictionary a Preliminary Objection is defined as being; “ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 21. The above legal preposition has been made in the case of “Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Ltd. (1969) EA 696 where the court held that; The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer it raises a pure point of law which is argued 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 in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the Issue. The improper practice should stop.” 22. In the case of “Oraro v Mbajja (2005) eKLR” the court stated thus on ‘Preliminary Objection’. “ I think the principle is abundantly clear. A “preliminary objection”, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that, “where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”. 23. In the case of “Henry Wanyama Khaemba v Standard Charted Bank (K) Limited & Another [2014] eKLR” in which the High Court cited with approval an earlier decision of Ojwang J (as he then was) in “Oraro v Mbajja [Supra)” held 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. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The principle is abundantly clear. A 'preliminary objection' correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 6

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objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.' 24. 25. In the case of: “Attorney General & Another v Andrew Mwaura Githinji & another (2016) eKLR” the court outlined the scope and nature of preliminarily objection as:I. A preliminary objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct. II. A preliminary objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and III. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse Issues in dispute. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. I find that the filed preliminary objections by the 1st Defendant herein were properly brought before the court in terms of the time frame. Admittedly, from a face value, the objections are based on aspects of matter of Law. However, whether the objection is on “Pure” matters of law is to be critically assessed and determined herein below. Issue No. b). Whether the Preliminary objection raised by the 1st Defendant dated 17th November 2025 and 25th July 2025 are meritorious. 26. 27. Under this Sub – title, the Honourable Court having clearly defined what an objection entails will endeavour to ascertain whether the said Preliminary objections are merited. It is instructive to note that although the 1st Defendant has lodged two ( 2 ) objections, but on keen assessment they appear very identical on contents and substance. Therefore, in order to save on the precious judicial resources, the Honourable Court has taken the liberty to condensed the Issues for clarity and ease of reference. Thus, in a nutshell, the 1st Defendant has raised several Issues therein being:- a. Whether the Plaintifi’s director has the legal capacity to depose documents on behalf of the company given that she lacked a Work Permit and was allegedly in the country on a tourist visa being a Citizen of France and not Kenya. b. Whether or not the director was present in the country at the time of signing the Verifying Afidavit instituting the suit, thus purporting to have appeared before a Commissioner for Oaths at Diani and not a Notary Public as she was abroad at the material time as required by the relevant provision of Law. c. Whether the names of the Plaintifi’s director on the verifying afidavit match her names on the CR - 12 form From the above allegations as raised by the 1st Defendant/Applicant, although they are numerous Issues of breach of certain provisions of the law, but by and large that it is clear that they are Issues of facts that need to be proved pursuant to proper interrogation of empirical evidence being placed before court to confirm them. For instance, who exactly is the Plaintifi, the place she was at and execution of the legal instruments; the detailed documentations of a Company by limited guarantee under the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 7

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Companies Act, Cap. 486 and so forth. For these reasons, the Preliminary objections by the Defendant/ Applicant must fail as the same are not on pure points of law. 28. It is further noted that the Applicant has raised the Issue of res subjudice, in the case of “Margaret Wachu Karuri v John Waweru Ribiro (2021) eKLR, the Court was faced with a similar question whether sub-judice can be raised as a preliminary point and held as follows:“ For the Court to determine whether the Issues herein were directly and substantially in Issue with the other suit, it is this court’s considered view that it will have to ascertain facts and probe evidence by ascertaining whether the Issues raised in the instant suit are the same as the ones in the Appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same Issues. On whether or not the same is sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this court holds and finds what has been raised by Defendant/Objector does not amount to a preliminary objection, and thus the preliminary objection is not merited. Consequently, this Court finds and holds that the Notice of Preliminary objection dated 30th August, 2019, by the Defendant/Objector is not merited and the same is dismissed entirely with costs to the Plaintifi/Respondent”. 29. Therefore, I fully agree entirely with the reasoning in the above decision. I discern that it’s all fours marries with the instant case before this court. Thus, to this I proceed to dismiss the objections under this ground. Issue No. c). Who will bear the Costs of the preliminary objection dated 17th November 2025 and 25th July 2025 30. It is now well established that the Issue of costs is at the discretion of the Costs. Costs mean the award that is granted upon a party upon the conclusion of a legal action or proceedings in any litigation. The Proviso of Section 27 [1] of the Civil Procedure Rules Cap. 21. provides:“ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers" 31. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the case of “Harun Mutwiri v Nairobi City County Government [2018] eKLR where the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 32. In the case of “Republic v Rosemary Wairimu Munene, Ex - Parte Applicant v Kururu Dairy Farmers Co-operative Society Limited” the Court held:“ The Issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case" https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 8

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33. In the case of “Hussein Muhumed Sirat v Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 34. In this case, as Honorable Court finds that the 1st Defendant/Applicant has failed in prosecuting its two ( 2 ) Preliminary Objections having been brought under the wrong procedure. Hence, it follows that the Plaintifi/ Respondent is entitled to be awarded costs of the said preliminary objections hereof. C. Conclusion and Disposition 35. Consequently, upon conducting an elaborate analysis of the Issues set out herein, the Honorable Court proceeds to grant the following orders: a. That the Preliminary Objections dated 25th July 2025 and 17th November 2025 respectively raised by the 1st Defendant be and are hereby overruled for lack of merit. b. That for expediency sake, there be a Pre – Trial Conference to be conducted on 15th July, 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing on 19th November, 2026 preferably through Physical means. c. That Costs of the two ( 2 ) Preliminary objections dated 25th July, 2025 and 17th November, 2025 respectively awarded to the Plaintifi/Respondent herein to be borne by the 1st Defendant. It isOrdered Accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 27TH DAY OF APRIL 2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. M/s. Washalla Advocate holding brief for Mr. Mungai Kamau Advocate for the Plaintifi/Respondent. c. M/s. Ashminder Kaur Advocate for the 1st Defendant/Respondent. d. No appearance for the 2nd Defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2785/eng@2026-04-27 9

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