Reliance Power Limited v Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidevi Bachulal Vyas)

(vi) General damages for trespass. (vii) Costs of the suit. (viii) Any other relief that this Honourable Court may deem just and fit to grant. (2) Synchronously, the Plaintiff/Respondent (herein hereinafter “the Plaintiff”) filed a Notice of Motion under Certificate of Urgency dated of even date, principally seeking the following orders: (i) An order staying the proceedings in Business Premises Rent Tribunal Case No. E058/2025 - Rajesh B. Vyas (holder of Power of Attorney for Laxmidevi Bachulal Vyas) vs. Reliance Power Parts Limited, pending the hearing and determination of the Application; and (ii) n order transferring the said Business Premises Rent Tribunal Case No. E058/2025 from the Business Premises Rent Tribunal to the Environment and Land Court at Eldoret for hearing and final determination. (3) This Application is predicated on the grounds set out on the face of the said Motion and facts deposed in the Supporting Affidavit sworn on 15 th July 2025 by the Plaintiff. (4) On the face of the Notice of Motion, in relation to the suit property, it is averred that the Plaintiff is the registered purchaser of Eldoret Municipality Block 7/53 (hereinafter “the said suit property”) and seeking to regain full vacant possession of the property which has partially been encroached by the Defendant. (5) In the said Supporting Affidavit, the Plaintiff rehashed the grounds set out in the Notice of Motion and further exhibited copies of the Sale Agreement marked CIM 1a & b; Surveyor’s Report in relation to the encroachment complained about marked CIM 2; and a Memorandum of Understanding marked CIM 3. (6) Both the Suit and Plaintiff’s Application were opposed by the Defendant vide a two-prong approach using: (i) Grounds of Opposition dated 12th August 2025; and (ii) a Preliminary Objection dated 21 st May 2026 (hereinafter “the PO”). PART II: DEFENDANT/RESPONDENT’S PRELIMINARY OBJECTION Page 2 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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(7) On 21 May 2026, the Defendant/Objector (hereinafter “Objector”) filed a PO of even date on grounds that the suit offends the provisions of sections 6 and 7 of the Civil Procedure Act (hereinafter “the CPA”) as the Plaintiff concedes that there are parallel proceedings in BPRT No. 58/2025 concerning the same parties and the subject matter & the issues of jurisdiction are determinable in the for a where a claim is filed under the doctrine of Kompetenz Kompetenz and not through parallel proceedings. st (8) The Grounds of Opposition were to the effect that the Application is incompetent and irregular and amounts to forum shopping; and that the issue of jurisdiction of the Business Premises Tribunal (hereinafter “the BPRT”) should first be raised before the BPRT under the doctrine of Kompetenz Kompetenz. The BPRT having determined the suit on 22nd October 2025, this Grounds of Opposition were overtaken by events effective 22nd October 2025 when a decision was rendered by the BPRT in BPRT in Case No. E058 of 2025. (9) Consequently, the remaining subject of this Ruling is the said PO. Upon perusal of the physical Court record and CTS, this Court found no evidence that the Objector filed written Submissions in respect to the PO. The record only reveals written Submissions in respect to the Grounds of Opposition (which needless to reiterate, were overtaken by events effective 22nd October 2025 when a decision was rendered by the BPRT in BPRT in Case No. E058 of 2025). (10) PART I: THE PLAINTIFF’S WRITTEN SUBMISSIONS ON THE PO (11) In his written Submissions dated 12th June 2026, learned Counsel Mr. Chirchir instructed by the Firm of J.K. Kaptich & Associates Advocates representing the Applicant, opposed the said PO. Regarding the question whether the PO raises a pure point of law as envisaged, Counsel submits that it does not, placing reliance upon Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696; and Oraro vs. Mbaja 1 KLR 141. This Court is urged to find that the PO is premature and misconceived since it is an attempt to have the Court determine contested factual matters guised as PO. (12) Concerning the question whether the suit is barred by section 6 of the CPA, although the Plaintiff acknowledges the existence of BPRT Case No. E058 of 2025, it is contended that the issues before the Tribunal are fundamentally different from those before this Honorable Court. (13) Regarding the question whether this Court has jurisdiction to hear and determine the Suit, learned Counsel cited Owners of the Motor (14) Page 3 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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Vessel P ‘Lillian S’ vs. Caltex Oil ( Kenya ) Ltd [1989] KLR 1; Article 162(2)(b) of the Constitution of Kenya; Cooperative Bank of Kenya vs. Patrick Kang’ethe Njuguna & 5 others [2017] eKLR; and Willy Kimutai Kitilit vs. Michael Kibet [2018] eKLR, for the proposition that this Court is clothed with jurisdiction to determine disputes involving the enforcement of contract relating to interests in land and to grant equitable remedies such as specific performance. Further and in the alternative, it urged that that the suit arises from a Sale Agreement dated 29 th March 2021, as varied by the agreement dated 15th June 2021, through which the Defendant sold the suit property to the Plaintiff and that the gist of the suit is that despite receiving the full purchase price and despite transferring the suit property to the Plaintiff, the Defendant has since failed to fulfil his contractual obligation to grant open and vacant possession. (15) PART V: QUESTIONS FOR DETERMINATION Commending themselves for determination - gleaning from the Defendant’s PO; the Plaint; and the Plaintiff’s written Submissions - are four questions as follows: (16) (i) Whether the Defendant’s Objections – anchored on the doctrine of sub judice under section 6 of the CPA and the doctrine of res judicata under section 7 of the CPA – have surmounted the test of a Preliminary Objection (as to be sustainable). (ii) Whether the present suit is barred by the doctrine of sub judice under Section 6 of the Civil Procedure Act on account of pending before the BPRT, under Case No. E058 of 2025. (iii) Whether the present suit is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act on account of having been heard and determined by the BPRT in Case No. E058 of 2025. (iv) Which party should bear the costs of this Application? PART VI: ANALYSIS AND DETERMINATION (i) Whether the Defendant’s Objections – anchored on the doctrine of sub judice under section 6 of the CPA and the doctrine of res judicata under section 7 of the CPA – have surmounted the test of a Preliminary Objection (as to be sustainable) Page 4 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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First, at the outset, this Court is cognizant that this plea falls in the class of actions conceptually known as actio praejudicialis (a preliminary action seeking determination of a preliminary issue on which other primary issues proposed for litigation depend). This Court is further cognizant that this preliminary plea further falls in the class of actions conceptually known as actio non or actionem non habere debet (a plea which seeks a declaration of this Court that the Plaintiffs/Respondents have been deprived of the right to maintain this action by filing it out of timeline of 12 years limited by section 7 of the Limitation of Actions Act). (17) Second, such a plea is dispositive in nature. See the Court of Appeal (hereinafter “COA”) rendition in the cause celebre and now locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 (hereinafter “the Mukisa case”); the Supreme Court of Kenya (hereinafter “SCORK”) in Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR; and Oraro vs. Mbaja [2005] 1 KLR 141. (18) Third, a Preliminary Objection cannot be raised if any fact requires to be but it is not yet ascertained. If the any assertion which claims to be a Preliminary Objection 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. It should thus be premised on a pure point of law, unblemished with either disputed or contested or unascertained facts which can only be established in a trial or immediately unascertainable facts which can only be established in a trial. It follows that a PO, properly so, is a pure point or question of law which has been pleaded, or which arises by clear implication of the pleadings, and which if argued as a preliminary point, is capable of disposing the suit. However, it does not mean that a PO is raised in a vacuum. It should properly so be predicated on either facts of common cause or undisputed or contested or ascertained or immediately ascertainable facts. See the Mukisa case, at page 700, where Law JA (as he then was) expressed a judicial view that “So far as I’m aware, 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.” In the Mukisa case, Sir Charles Newbold, P (as he then was), at page 701, reasoned that “A Preliminary Objection is in the nature of what used to be a demurrer. It arises a pure point of law which is argued on the assumption that all the facts pleaded by the other side or correct. It cannot be raised if any fact has to be ascertained or if what is sought is the (19) Page 5 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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exercise of judicial discretion.” The Supreme Court of Kenya (hereinafter “SCORK”) has since affirmed the rendition in the Mukisa case. See for instance Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR, where SCORK stated as follows: “Thus a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” It follows that if any Motion which claims to be a PO, as a matter of necessity, is predicated on a question or fact which calls for proof or authentication or ascertainment, as a matter of legal principle, the question should set down for hearing and determination. In Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J. (as he then was) citing in approval the Mukisa case held as follows: “1. A Preliminary Objection correctly understood, is 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 process of evidence. 2. Any assertion which claims to be a Preliminary Objection, and yet it bears s 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. 3. If a matter comes before the Court dressed as a “Preliminary Objection” it will not come co-exist with such factual scenarios as may lead to the Court to exercise its discretion by virtue of Section 3A of the Civil Procedure Act. 4. The Court’s discretion is never exercised just on the basis of proposition of law: there must be a factual situation of which the Court takes cognizance, and in relation to which its equitable conscience is exercised. 5. It has to be appreciated that the Court’s discretion exercised by virtue of Section 3A of the Civil Procedure Act is always of for the purpose of upholding the law as far as is possible; and this would require preserving the claims of parties so that they may be heard and determined according to law. 6. The Applicant’s plea is that the Respondent’s pleadings be terminated in limine. There is no consistency between such a prayer, which belongs to the normal practice attending Preliminary Objection (matters of law), on the one hand, and the case for ensuring fair trial which the Applicant has also urged, on the other hand.” Fourth, and joined at the hip with the foregoing is the position that it is now established law, that a PO can properly so be raised in regard to the doctrine of sub judice and the doctrine of res judicata, provided it passes the test in the third principle above. (20) Fifth, the Court should always tread the road towards a lower risk of possible injustice. This is achieved by electing a pathway which ensures that none of the parties suffers prejudice at the preliminary stage. It follows that before taking the (21) Page 6 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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drastic direction of striking out a pleading, premised on the overriding objective of civil procedure, the Court should first consider the closest alternative to striking out, which will best serve the interests of administration of justice. In this connection, either upon the Application of any party or on its own motion, the Court should consider whether it will serve the interest of administration of justice to order a separate trial or make such order as may be expedient. See Kenya Commercial Finance Company Limited vs. Richard Akwesera Onditi (Civil Appeal (Application) 329 of 2009) [2010] KECA 134 (KLR) (19 March 2010) (Ruling) [hereinafter “the Onditi case”], where Omolo, Waki & Nyamu, JJA, (as they then were) rendered themselves as follows: “There is no doubt that if Mr. Wanjala’s Submissions were made in this Court before the enactment of Sections 3A and 3B of the Appellate Jurisdiction Act, there would have been no valid answer to them. Since the enactment of the said provisions, which brought in the principle or concept of overriding objective in litigation, there can be no automatic striking out of an appeal or a notice of appeal unless there is no alternative to that course…” See also William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others [2016] KECA 301 (KLR), where the COA reiterated the said judicial view that “Whereas the trial Court was of the considered opinion that the suit filed before it could not be conveniently tried and determined as filed, the Court was at liberty to and should have, in our considered and respectful opinion, either upon the Application of any party, or on its own motion ordered separate trials, or made such order as may be expedient. See Order 3 Rule 8 of the Civil Procedure Rules (2010). Given that avenue that was available to it, the trial Court’s order to strike out the Appellant’s suit comes into sharp focus. The same was discretionary in the face of the grounds adduced by the Respondents and Submissions both in favour and against the issuance of the said order. Thus, strictly speaking the Respondent’s Preliminary Objection did not meet the requisite threshold and should not have been allowed. We think that Newbold, J.A. was right to opine that matters discretionary are outside the purview of Preliminary Objections and while we note Mr. Musangi’s contrary view, we respectfully think Counsel has it wrong.” Sixth, striking out a suit amounts to summary adjudication of a suit which should only be exercised in plain and obvious cases when the action is one which cannot succeed for being plainly and obviously hopeless in the sense that it is so weak as to be beyond redemption and incurable by amendment; one which is plainly and obviously amounts to an abuse of the process of the Court; or one which plainly and obviously discloses no reasonable cause of action. See the cause celebre COA decision in DT Dobie & Company (Kenya) Ltd v Muchina & another (Civil (22) Page 7 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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Appeal 37 of 1978) [1980] KECA 3 (KLR) (18 March 1980) (Judgment) [hereinafter “the DT dobie case”]. First, the threshold of plain and obvious is not met if the suit discloses even a mere semblance of a cause of action and if it can be rescued by way of amendment, in which case it should be permitted to progress and finally determined after the Court has received the full facts of the case. See the DT Dobie case. Second, the threshold of plain and obvious is not met if the Application calls for a protracted examination of documents which is worsened by affidavit evidence which had not been tested in cross-examination. See the DT Dobie case. See also Nagle vs. Fielden (1966) 2 Q.B.D. 633, per Danckwerts, L.J.; and Salmon L.J.; and Lawrence v. Lord Norreys, 15. A.C. 210, per Lord Herschell, both of which were cited in approval in the often-quoted cause celebre COA decision in the DT Dobie case. In Lawrence v. Lord Norreys, 15. A.C. 210, at p. 219, Lord Herschell adopted the judicial view expressed by Danckwerts, L.J. in Nagle vs. Fielden (1966) 2 Q.B.D. 633 that “The summary remedy which has been applied to this action is only applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process of the Court.” Similarly, Salmon L.J. expressed a view in Nagle vs. Fielden (1966) 2 Q.B.D. 633 that “It is well settled that a statement of claim should not be struck out and the Plaintiff driven from the judgment seat unless the case is unarguable. Accordingly it is necessary to consider whether or not this Plaintiff has an arguable case. That is the only question that arises on this appeal.” Seventh and intertwiningly linked to the foregoing sixth principle, striking out a pleading is a draconian step which results in driving a litigant from the seat of justice/judgment and as such, the step should be taken as the last resort and a Court of law should strive to sustain an action. See Sebei District Administration vs. Gasyali and others [1968] 1 EA 300; Dickson Karaba vs. John Ngata Kariuki & Another [2010] eKLR; and Pharmaceutical Products Ltd v Development Bank of Kenya & 2 others [2004] KEHC 1307 (KLR), where it was held that the Court must also remember that to shut a litigant out of the Court should be the Court’s last resort. One of the principal reasons why striking out should be the last resort was explained by the COA in Richard Ncharpi Leiyangu vs. Independent Electoral Boundaries Commission & 2 Others [2013] eKLR, where Visram and Odek, JJA (as they then were), Koome, JA stated as follows: “22]. The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the Rule of law. This is why even if the Courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the Court process from abuse that would amount to injustice and at the end of the day there should be proportionality.” The (23) Page 8 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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second chief reason was explained in Dyson vs. Attorney General [1911] KB 418, Fletcher Moulton L. J. (as he then was) expressed a view which has now almost gained universal acceptance that “...the Courts have properly considered that this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in causes where the action is an abuse of legal procedure… To my mind, it is evident that our judicial system would never permit a Plaintiff to be “driven from the Judgment seat” in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad.” In this vein, before striking out a pleading or Application, a Court should strive to sustain an action. This step - being draconian - should be sparingly deployed (and I must add in the rare of the rarest circumstances). In the DT Dobie case, Madan JA took an emphatic judicial view that a suit is for hearing and not for summary dismissal or striking out. His Lordship had this to say and I entirely concur: “If an action is explainable as a likely happening which is not plainly and obviously impossible the Court ought not to overact by considering itself in a bind summarily to dismiss the action. A Court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of a case before it. On the other hand, if there is a point of law which merits a serious discussion the Court should be asked to proceed under order XIV Rule 2.” See also Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu [2009] eKLR. Eighth and intimately connected to the seventh principle, unless the threshold in the DT Dobie case, all parties before the Court should be given an opportunity to present their cases before a decision is rendered. This principle is anchored on both the legal maxim audi alteram partem (that no person should be judged or condemned without a fair chance to defend themselves, now firmly enshrined under Article 50(1) of the Constitution) and the principle of substance over form now enshrined in Article 159(2)(d) of the Constitution. Speaking about the need for an opportunity to ventilate issues and the need to avoid the draconian stance of striking out pleadings in Republic v Public Procurement Administrative Review Board & 2 others [2018] KEHC 9167 (KLR), Mativo, J. took an insistent judicial view that “29. Striking out pleadings is a draconian step and as was held in Agip Kenya Ltd vs Highlands (24) Page 9 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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Tyres Ltd {2001} KLR 630 the process of the judicial system requires that all parties before the Court should be given an opportunity to present their cases before a decision is given. As Lord Cairns in Roger Vs Comptoirs Escompts De Paris, {1871} LR 3 PC 465. bluntly put it: - "One of the first and highest duties of all, Courts is to take care that the act of the Court does no injury to any of the suitors and when the expressions Act of the Courts is used it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matters up to the highest Court which finally disposes of the case." 30. The fundamental duty of the Court is to do justice between the parties. It is, in turn, fundamental to that duty that parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. It is fundamental principle of natural justice, applicable to all Courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justiciae, to have any determination which affects him set aside. 31. Discretion vested in the Court is dependent upon various circumstances, which the Court has to consider among them the need to do real and substantial justice to the parties to the suit. Discretion must be exercised in accordance with sound and reasonable judicial principles. The King’s Bench in Rookey’s Case stated as follows: - “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by Rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” 32. Writing on judicial power, Chief Justice John Marshall wrote:- "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” The said legal maxim audi alteram partem and the principle of substance Page 10 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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over form were also reiterated in Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22, where it was held that “The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to Rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered.” See also Sebei District Administration vs. Gasyali and others [1968] 1 EA 300; Dickson Karaba vs. John Ngata Kariuki & Another [2010] eKLR; and Pharmaceutical Products Ltd v Development Bank of Kenya & 2 others [2004] KEHC 1307 (KLR). Ninth, the Court in exercising the discretionary power on striking out a pleading, should bear in mind that if the gist relates to noncompliance of rules of procedure, before granting, the Court should be persuaded that the procedural non-compliance cannot be rescued by Article 159(2)(d) of the Constitution of Kenya. See the COA decision in the Onditi case where a view was expressed that “The Court now has wider powers and will not automatically strike out proceedings but will before doing so, look at available alternatives. According to the Defendant, a verifying Affidavit must be filed with the Plaint and not subsequently. Order 4 Rule 1(6), however, gives the Court discretion when it comes to striking out based on such omission. The Defendant is, however, incorrect in submitting that the omission to file one verifying Affidavit would necessarily lead to the striking out of the suit. In my view, the only suit that would be affected by such omission in the present case is that of the 3rd Plaintiff. In exercising this discretion, the most important consideration, in my view, is that of justice and unless the omission has occasioned the Defendant prejudice, the Court, as always, should lean towards sustaining a suit. The only prejudice alleged herein is that the effect of validating the Plaint and the suit would be to pull the rag from the feet of the Defendant as it were since it would have the effect of rendering a port ion of the Defendant’s Application filed earlier on superfluous. That may be so; however, it does not, in my view justify resort to the draconian option of striking out a suit, especially where the defect would only affect the suit by one of the several Plaintiffs. The issue of the place of abode, in my view, is no longer a matter of life and death in light of the provisions of Order 19 Rule 7 of the Civil Procedure Rules, 2010 which empower the Court to receive any Affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or (25) Page 11 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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otherwise in the title or other irregularity in the form thereof or on any technicality. Tenth, an Application to strike out a suit should be brought without undue delay. See George P. B. Ogendo vs. James Nandasa & 4 others [2006] eKLR, where GBM Kariuki, J. (as he then was) stated that “In such cases, the Court has power and will not hesitate to strike out the offending pleading if the justice of the case so demands… An Application to strike out must also be brought without undue delay. These then are the principles that are to be applied to each case where, as here, the Court is called upon to exercise its discretionary power to strike out a pleading.” (26) In determining this objection, this Court will be guided by the ten legal principles discussed above. (27) In relation to the objection anchored on the doctrine of sub judice under section 6 of the CPA; and in further relation to the doctrine of res judicata under section 7 of the CPA, upon subjecting the said objections to the test of a Preliminary Objection discussed at length above, and upon addressing my judicial mind to the ten principles discussed above, and upon further addressing my judicial mind to the factual position which was registered on 2nd February 2026, by Mr. Dida holding brief for Mr. Mutiso for the Defendant, to the effect that the BPRT determined the suit on 22nd October 2025 (in favour of the Defendant) which position was acknowledged by Mr. Kaptich for the Plaintiff, who however, took a view that beyond the questions of tenancy, there are other issues and prayers for determination by this Court; and although this Application was brought without undue delay, it is the finding of this Court and it is so concluded that the Objection is not anchored on a pure point of law, since it is blemished with disputed, contested, unascertained and immediately unascertainable facts as follows: (28) (i) First, the pleadings in BPRT Case No. E058 of 2025 were not presented by the Objector, considered through the prism of the now an established principle that a Court of law should not proceed in darkness without the full facts of a case before it (as laid down in the DT Dobie case); (ii) Second, the determination in BPRT Case No. E058 of 2025 was not presented by the Objector and considering that a Court of law should not grope in darkness when determining a juridical question, this Court is unable to properly determine this question without the full facts of a case before it (as laid down in the DT Dobie case); Page 12 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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(iii) Third, the Application does not surmount the plain and obvious threshold necessary for such Applications, since it calls for a protracted examination of the pleadings and determination in BPRT Case No. E058 of 2025 and the Application. (iv) Fourth, guided by the foregoing fifth principle that a Court should always tread the road towards a lower risk of probable injustice and in this regard - premised on the oxygen principle – which enjoins this Court to first consider the closest alternative to striking out, which will best serve the interests of administration of justice and considering further that the pleadings and determination in BPRT Case No. E058 of 2025 were not presented by the Objector necessitating deferment of their consideration to the plenary (full hearing) as opposed to summary procedure, this Court is of the judicial persuasion that the Defendant will suffer no prejudice if the said factual issues are prosecuted at the hearing of the main suit, in which both parties will enjoy an arm’s length opportunity to present their cases and ventilate their issues before a decision is finally rendered thereon. It is on basis of the foregoing reasons that this Court finds it judicious and heavily swayed by the fact that ultimately - by electing to hear the main suit and determine all the contested factual issues in one Judgment - none of the parties will suffer prejudice. (29) (ii) Whether the present suit is barred by the doctrine of sub judice under Section 6 of the Civil Procedure Act on account of pending before the BPRT, under Case No. E058 of 2025 Having reached the forgoing conclusion – under Question (i) - that the objection in this regard has failed the test of Preliminary Objections, this substantive question is rendered moot. (30) (iii) Whether the present suit is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act on account of having been heard and determined by the BPRT in Case No. E058 of 2025 Having reached the forgoing conclusion – under Question (i) - that the objection in this regard has failed the test of Preliminary Objections, this substantive question is rendered moot. (31) (iv) Which party should shoulder the costs of this Application? The law on costs as I discern it is that first, an award of costs is discretionary. Second, save where costs and interest are compromised, the Court reserves the discretionary power to award. See Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) (32) Page 13 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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eKLR, Gikonyo, J. Third, even where a suit has been compromised without including costs in the compromise, the discretion of the Court aforesaid remains unscathed. See Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another [2016] eKLR, per C. Kariuki, J. How then is this discretion exercised? Discretion is not the same thing as carte blanche. Beacons demarcating how discretion is exercised are as follows: (33) (i) First, discretion ought to be exercised with circumspection and judiciously. See Christopher Kiprotich vs. Daniel Gathua & 5 others [1976] eKLR; Mbogo and Another vs. Shah [1968] EA 93 and Mohindra vs. Mohindra (1953) 20 EACA 56. Speaking of discretion, Lord Halsbury L. C., in the case of Sharp vs. Wakefield [1891] 64 L.T Rep. 180 Ap. Ca.173 held that: “When it is said that something is to be done within the discretion of the authorities, that thing is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself.” In Rooke’s case, 5 Rep. 99b (1598), adverted to in approval by Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others [2018] eKLR, the Court attempted a definition of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” (ii) Second, costs follow the event unless the Court finds a good cause to negate this trajectory. See Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & another [2016] eKLR). In this context, the meaning ascribed to the words “costs shall follow the event” is that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Defendant or Respondent will bear the costs. See the seminal works of Kuloba, J. (as he then was), Judicial Hints on Civil Page 14 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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Procedure 2nd edition at page 99; Dipchem East Africa Limited vs. Karutturi Limited (In Receivership) [2015] eKLR, per Gikonyo, J.; Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another (2016) eKLR, per Mativo, J.; and Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (iii) Third, and closely intertwined with the second is that costs should not be used to penalize the losing party but rather to compensate the successful party for the trouble invested in the proceeding or defending the suit. See Joseph Oduor Anode vs. Kenya Red Cross Society [2012] eKLR, per Odunga, J. (iv) Fourth, and also closely connected with the second and third is that the purpose served by an award of costs is guided by the principle restitution in integrum i.e to reimburse the successful party the money expended in the case. See the SCOK decision in Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (v) Fifth, and too connected to the second, third and fourth beacons is that a successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. See Orix Oil (Kenya) Ltd vs. Paul Kabeu & 2 Others (2014) eKLR; and Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Considering that the Preliminary Objection cannot properly so be described as far-fetched, this Court exercises its discretionary power in the direction of ordering that the costs incurred in the Preliminary Objection shall abide the outcome of the main suit. (34) PART VII: DISPOSITION Wherefore this Court finds the Defendant’s Preliminary Objection without merit and dismisses it. (35) Costs incurred in the Preliminary Objection shall abide by the outcome of the main suit. (36) Virtually Delivered, Signed and Dated in ELC Eldoret this 17th day of September 2026 Page 15 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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…………….………… C.N. Ondieki Judge In the presence of: Advocate for the Plaintiff/Respondent: Mr. Songok Advocate for the Defendant/Objector: Mr. Mutiso Court Assistants: Ms. Chepkoech & Ms. Juma Page 16 of 16 Eldoret ELCLC Number E069 of 2025 – CNO (R)

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