Divyesh Indubhai Patel & 1 other v United Credit Limited & 1 other

MCCOMMSU No. E865 of 2015 - Equip Agencies v United Credit, over the same subject matter, which was withdrawn on 7th August 2025. Counsel contends that the multiplicity of suits amounts to forum shopping and abuse of the court process. 5. The 2nd Respondent opposes the objection, submitting that it does not meet the legal threshold of a true preliminary objection as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. According to the 2nd Respondent, the objection is founded on contested facts, namely, the status, parties, and issues in the previous suits, which cannot be determined without evidence. 6. The 2nd Respondent relies on Oraro v Mbaja [2005] 1 KLR 141, and Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another (2014) eKLR, to submit that where factual issues arise, a preliminary objection cannot stand. 7. Further, it is submitted that the suit allegedly forming the basis of res judicata MCCOMMSU No. E865 of 2015, was withdrawn, and therefore cannot ground res judicata or sub judice. 8. The Plaintiffs similarly oppose the Preliminary Objection, arguing that it is misconceived, legally untenable, and aimed at delaying the substantive hearing of the matter. 9. The Plaintiffs contend that a withdrawn suit cannot satisfy the requirements of sections 6 and 7 of the Civil Procedure Act, as sub judice requires a pending suit and res judicata requires a suit that has been heard and finally determined. They submit that the Preliminary Objection rests on incorrect factual assertions and fails the test of a valid preliminary objection as articulated in Mukisa Biscuit. They urge that the objection be dismissed with costs. Analysis and determination 10. The sole question for determination is whether the preliminary objection is merited. 11. A preliminary objection must be founded on a pure point of law and based on uncontroverted facts. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the court held that: “ A preliminary objection consists of a point of law which has been pleaded…and which if argued as a preliminary point may dispose of the suit. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 12. The first question is therefore whether the issues raised are purely legal. A pure point of law is one that can be argued on the presumption that all the factual allegations in the pleadings are true. Where facts must be established, verified, or interrogated, a preliminary objection cannot stand. (See Oraro v Mbaja [2005] 1 KLR 141). 13. In the instant case, the 1st Defendant argues that this suit is res judicata or sub judice, High Court Commercial Case No. E105 of 2025. It is contended that the parties and subject matter are the same, save that the 2nd Defendant herein was a plaintiff in the earlier suit. 14. Section 6 of the Civil Procedure Act provides that: “ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18361/eng@2025-12-11 2

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the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 15. For sub judice to apply, the earlier suit must be pending, the parties must be the same or claiming under the same title, and the issues must be directly and substantially the same. Whether the identity of parties is preserved where a party shifts from plaintiff to defendant is a factual question requiring evaluation of pleadings, not suitable for a preliminary objection. 16. For res judicata, Section 7 of the Civil Procedure Act requires that: “ 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.” 17. The 1st Defendant relies heavily on the ruling of 19th June 2025 in HCCOMM E105 of 2025, arguing that the dismissal of an injunction application finally determined the issues. However, injunctive applications, being interlocutory, do not amount to a final determination of rights, and courts have consistently held that interlocutory findings cannot ground res judicata. 18. More importantly, whether the issues in HCCOMM E105 of 2025 are identical to those in the present suit is strongly contested. The Court would be required to compare pleadings, applications, parties, and prayers, matters outside the four corners of a pure point of law. 19. Furthermore, the reliance on MCCOMMSU No. E865 of 2015 is untenable because a withdrawn suit cannot form the basis of either res judicata or sub judice, as there is no pending suit nor a final determination. 20. From the foregoing, the Preliminary Objection cannot be said to be founded on uncontested facts. It invites the Court to interrogate disputed matters, it fails the legal test in Mukisa Biscuit. I thus find it is devoid of merit. 21. The 1st Defendant’s Preliminary Objection dated 26th September 2025 is dismissed. Costs in the cause. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF DECEMBER 2025. P.M. MULWA JUDGE In the presence of: Mr. Wachira h/b for Mr. Kimere for Plaintiff/Applicant Mr. Ochwa for 1st Defendant Mr. Mirie for 2nd Defendant Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18361/eng@2025-12-11 3

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