John Billy Kuria v Advancly Embed Technologies Limited

4. 3. Association of Micro-finance Institutions- Kenya v The Central Bank of Kenya & 3 others (Constitutional Petition E008 of 2022) [2022] KEHC 13053 (KLR) (22 September 2022) (Judgment) 4. Kisumu Bar Owners Association, Solomon Martins Omutsani v Kenya Copyright Board (KECOBO) (Judicial Review 4 of 2019) [2019] KEHC 1870 (KLR) 5. Afrisure CC and Another v Watson NO and Another 2009 (2) SA 127 (SCA) 6. Filippus Albertus Opperman and Jacob Boonzaaier, Minister of Finance, The Minister of Trade and Industry, the National Credit Regulator [case number 2447/2010] 7. Florida Earth Trades, Inc. v T&G Corp., 108 So. 3d 580 (Fla. 2013) The creditor urged the court to dismiss the PO with costs. It relied on: SUBPARA 1. George Otieno Gache & another v Judith Akinyi Bonyo & 5 others [2019] KECA 430 (KLR) 2. Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 3. Anthony Maina Mwangi & 2 others v Beatrice Oluoch & 2 others; Settlement Fund Trustee & another (Interested Parties) [2022] KEELC 1458 (KLR) 4. Oraro v Mbajja [2005] eKLR Analysis and Determination 5. I have considered the PO and the parties’ respective submissions thereto. 6. Is the PO is merited? 7. A preliminary objection; a) ‘... must be a matter of law which is capable of disposing off the suit; b) ‘… must not be blurred by factual details calling for evidence; and c) ‘…must not call upon the court to exercise discretion.’ Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [supra] Locus standi 8. It was argued by way of a preliminary objection that the creditor lacks locus standi to bring this suit or proceedings as it does not have the mandatory license from the Central Bank of Kenya (CBK) to engage in the digital credit business. 9. According to the applicant, drawing upon its activities and section 6.1 and 6.1.2 of the service level agreement, the respondent operates as an unlicensed digital credit provider. 10. The applicant also asserted that the respondent has contravened section 33S of the CBK Act which empowers the CBK to publish the names of licensed digital credit providers. This is because the respondent is not listed as a licensed digital credit provider. 11. It was the applicant’s surmise that due to the fact that the respondent is not listed, the respondent is not licensed contrary to section 33S and regulations 4(1) and 4(2) of the CBK (Digital Credit Providers) Regulations, 2022. 12. The applicant contended that actions taken by a creditor in violation of regulatory requirements are void. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19254/eng@2025-12-17 2

page 2 of 3

13. The respondent argued that the PO does not meet the threshold above as it requires the court to look into various clauses of the service level agreement between the parties; the CBK Act and Regulations to decide whether the respondent is a digital credit provider and the nature of its operations and the channels through which it offers credit to determine if it is licensed. 14. The nature of the matter argued under locus standi are of evidentiary character and are not pure points of law. Accordingly, the PO is blurred by factual and evidentiary details which require probing through evidentiary tools by the court. Demand notice contested 15. Similarly, the point that the statutory demand is contested and should be struck out in limine is hinged on factual matters. 16. Thus, all these issues require a forum or site with procedures capable of evaluating the evidence before making a decision. In this case, the application dated 10.6.2024 that is seeking to set aside the statutory demand presents the perfect forum for evaluation of these issues. Thus, let the issues forming the PO be considered in the said application. It is so ordered. The application to set aside the demand notice be fast-tracked. The value of multidoor initiative 17. Be that as it may, I leave not without giving a hint that such disputes involving parties who have been or are in a relationship are best resolved through the multiple door platform provided in the Constitution. It gives outcomes that are mutual and appreciated by the parties; taking care of the deep-sea interests that matter to the parties, healing and sustaining relationships and businesses. If parties so wish and intend, they may request to deploy alternative justice mechanisms in this case. The growing motivation is to appropriately situate ADR within the insolvency process to rescue viable businesses whilst they pay their debts. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION ----------------F. GIKONYO M JUDGE In the presence of: Ms. Diru for Muthee for Creditor/Respondent Karanja for debtor CA - Kinyua 3 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19254/eng@2025-12-17 3

page 3 of 3