Kiura v NRS Sacco Society & another (Environment and Land Case E191 of 2025) [2026] KEELC 5037 (KLR)

4. The preliminary objection was met by opposition from the Plaintiff and it was canvassed by way of written submissions in accordance with the directions of the Court. 5. Having considered the pleadings, the preliminary objection, the rival submissions and the relevant authorities the issue that emerges for determination is: whether the Defendant's Preliminary Objection is merited. Analysis and Determination 6. A preliminary objection occupies a narrow but important place in civil litigation. It invites the court to terminate proceedings without a trial. Because that power is exceptional, the law confines it to pure questions of law, argued on the assumption that the pleaded facts are true and capable, if upheld, of disposing of the proceedings. 7. That understanding has, for decades, remained the bedrock of our jurisprudence on preliminary objections. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 (EACA), Law JA described a preliminary objection as: "…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." 8. In the same case, Newbold P elaborated on the concept of preliminary objection as follows: THIKA ELC NO. E191 OF 2025 (RULING) Page 2

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"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 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." 9. In essence, a valid preliminary objection must satisfy three indispensable requirements. It must raise a pure question of law; it must proceed on the assumption that the facts pleaded are correct; and its determination must neither require the court to ascertain disputed facts nor call for the exercise of judicial discretion. 10. Those principles have been consistently reaffirmed and refined by the Supreme Court of Kenya. In Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) the Supreme Court cautioned against the indiscriminate invocation of preliminary objections, observing: “The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 11. The common denominator in these decisions is that form must yield to substance. However elegantly framed, an objection is not THIKA ELC NO. E191 OF 2025 (RULING) Page 3

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transformed into a preliminary objection merely because it is so described. The court must look beyond its label to the inquiry it demands. If that inquiry trespasses into disputed facts or evidentiary evaluation, the objection loses its juridical character as a preliminary objection. 12. I begin with the question of jurisdiction. 13. The foundation of the 2nd Defendant's objection is section 81(1) of the Co-operative Societies Act. The 2nd Defendant submits that the present dispute falls within the exclusive jurisdiction of the Cooperative Tribunal, thereby ousting the jurisdiction of this Court. 14. That submission, however, cannot be accepted without first examining the statutory source of the Tribunal's jurisdiction. Section 81(1), upon which the 2nd Defendant relies, governs appeals from the Tribunal. It does not define the Tribunal's original jurisdiction. 15. That jurisdiction is conferred by section 76(1) of the Act which provides: “(1) If any dispute concerning the business of a co-operative society arises:— (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between members, past members or deceased members, and the society, its Committee or any officer of the society; or THIKA ELC NO. E191 OF 2025 (RULING) Page 4

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(c) between the society and any other co-operative Society; it shall be referred to the Tribunal.” 16. Section 76(1) does not confer a general jurisdiction upon the Tribunal. Its jurisdiction is limited to the disputes and parties expressly contemplated by the statute. 17. The present dispute, as disclosed by the pleadings, arises from an alleged tenancy agreement and the Plaintiff's threatened eviction from the suit premises. It is not, on its face, a dispute concerning the business of the 1st Defendant within the contemplation of section 76(1). The mere fact that the 1st Defendant is a co-operative society is insufficient, without more, to bring the dispute within the jurisdiction of the Co-operative Tribunal. 18. Accordingly, I find no merit in the 2nd Defendant's objection founded on section 76(1) of the Co-operative Societies Act. The objection founded on that provision consequently fails. 19. The 2nd Defendant further contends that the dispute falls within the exclusive jurisdiction of the Business Premises Rent Tribunal. That contention cannot be determined on the present record. While the tenancy agreement is expressed to be for a term of one year, the applicability of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act depends upon considerations that are not apparent on the face of the pleadings. The objection therefore falls outside the limited scope of a preliminary objection THIKA ELC NO. E191 OF 2025 (RULING) Page 5

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20. The objection founded on pecuniary jurisdiction suffers from the same infirmity. Jurisdiction cannot rest upon conjecture. Where the jurisdictional fact, in this case the value of the subject matter, is neither apparent from the pleadings nor otherwise admitted, the Court cannot ascertain it without receiving evidence. That exercise is incompatible with the nature of a preliminary objection. The objection on pecuniary jurisdiction therefore cannot be sustained. 21. I now turn to the plea of res judicata. The 2nd Defendant contends that the present suit is barred by reason of prior proceedings before the Co-operative Tribunal in which a decree was issued. 22. The doctrine of res judicata is codified under section 7 of the Civil Procedure Act, which provides: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 23. Being a doctrine that forecloses a litigant from being heard, the application of res judicata is contingent upon the satisfaction of each of the statutory elements embodied in section 7. 24. It must therefore be shown that the former and subsequent proceedings involve the same matter directly and substantially in issue; the same parties, or parties litigating under the same title; THIKA ELC NO. E191 OF 2025 (RULING) Page 6

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that the former proceedings were determined by a court or tribunal of competent jurisdiction; and that the matter was heard and finally determined. It is only where those conditions coalesce that the jurisdiction of the Court is displaced. 25. In support of the plea, the 2nd Defendant relies on Co-operative Tribunal Case No. CTC/E512/2023 and asserts that a decree was issued therein. That, however, is not sufficient to sustain a plea of res judicata. The Court is not in a position, from the material presently before it, to ascertain whether the matters directly and substantially in issue are the same, whether the parties are litigating under the same title, or whether the issues now raised were heard and finally determined in the earlier proceedings. Those questions cannot be answered without recourse to the record of the previous suit. 26. The determination of the plea of res judicata would require the Court to investigate matters beyond the pleadings. It therefore falls outside the narrow province of a true preliminary objection as contemplated in Mukisa (supra). 27. The objection that the Plaintiff lacks locus standi is, with respect, misconceived. The Plaintiff instituted these proceedings in their capacity as the tenant under a tenancy agreement with the 1st Defendant and seeks to vindicate rights which it claims arise therefrom. Whether the 2nd Defendant, not being a party to that agreement, can lawfully issue the impugned vacation notice, or whether any cause of action lies against them, are questions that go THIKA ELC NO. E191 OF 2025 (RULING) Page 7

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to the merits of the suit. Their resolution necessarily requires an examination of the tenancy agreement and the surrounding facts. They are therefore not amenable to determination by way of a preliminary objection. 28. The remaining grounds stand on no firmer footing. Whether a suit is misconceived, fatally defective, an abuse of the court process, or vitiated by material non-disclosure are not pure questions of law. Their determination calls for an examination of the pleadings, the surrounding facts and, in the case of material non-disclosure, the exercise of judicial discretion. Such inquiries are incompatible with the limited office of a preliminary objection as contemplated in Mukisa (supra). 29. Ultimately, the objection falters because it invites the Court to determine questions that lie beyond the confines of a pure point of law. 30. The Preliminary Objection dated 22nd October 2025 is accordingly dismissed with costs. It is so Ordered. Dated, signed and delivered, virtually at Malindi this 30th day of July 2026 …………………….. J. M. ONYANGO JUDGE THIKA ELC NO. E191 OF 2025 (RULING) Page 8

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In the presence of: Ms Njeru for Mr Gicheha for the Plaintiff/ Applicant No appearance for the Defendant THIKA ELC NO. E191 OF 2025 (RULING) Page 9

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