Mombasa Khushi Motors Co Ltd v Brian Sikhira Waliera

of action law. That actions by the appellant constitute an abuse of the court process and is akin to forum shopping before the courts. 3. On whether the appellant is entitled to costs of the application, the respondent submitted that besides emotional distress caused by the appellant, the respondent has had to incur huge legal and incidental costs bringing the instant application and defending the multiple suits filed by the appellant. The respondent submitted that the appeal as filed is incompetent, fatally defective and must be dismissed with costs. 4. The appellant in opposition to the notice of preliminary objection filed submissions dated 25th March 2025 and maintained that they have a right to pursue both a review and an appeal, as the grounds for each are fundamentally distinct. That the review application sought to address procedural errors or apparent mistakes on the face of the record, whereas the appeal challenges the substantive issues of law and jurisdiction that arose from the judgment. 5. That section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules do not prohibit the filing of an appeal after the dismissal of a review application, nor do they bar an aggrieved party from challenging a judgment on legal grounds even after a review application has been made. That the core issues at hand relating to the interpretation and implementation of a conditional judgment, procedural irregularities in execution, and the equitable balancing of the parties’ rights and obligations cannot be resolved by way of a preliminary objection that merely scratches the surface of the dispute. 6. That the issues demand a deeper inquiry by this court, grounded in substantive law, equity, and procedural fairness, rather than premature termination through reliance on procedural technicalities. The appellant urged the court to dismiss the preliminary objection with costs to abide the outcome of the appeal. 7. This court has considered the preliminary objection and submissions by the parties. The issues for determination are; 8. a. Whether the preliminary objection is merited and; b. What orders on costs should issue. The applicable principles in determining the merits of a preliminary objection were set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969) EA 696 as follows: “ … 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 … A preliminary objection is in the nature of what used to be a demurrer. it raises a pure point of law which is usually 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 applying the test whether the preliminary objection has met the threshold set out above, first, the preliminary objection ought to raise a pure point of law, second, there should be a demonstration that facts pleaded by the other side are correct, and third, facts need not be ascertained. 10. The respondent filed the preliminary objection herein on the basis of section 80 of the Civil Procedure Act and order 45 rule 1 and 2 of the Civil Procedure Rules regarding availability of appellate jurisdiction after an application for review. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4339/eng@2026-02-26 2

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11. Section 80 of the Civil Procedure Act provides as follows: Any person who considers himself aggrieved: - 12. a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Order 45 rule 1 and 2 of the Civil Procedure Rules provide: 1. 2. Any person considering himself aggrieved: a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. Order 45 Rule 2 1. 13. An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed. Electing to pursue review, the Appellant invoked jurisdiction of the trial court under the above provisions. This election barred subsequent appeal against the original judgment. While both review and appeal serve different purposes, the distinction does not entitle a party to pursue both simultaneously or sequentially in respect of the same decision. The law does not permit a litigant to have two bites at the cherry by first seeking a review and upon failure, turning around to lodge an appeal against the same judgment. The preliminary objection is hereby upheld with costs to the respondent. Determination 14. Accordingly, the court orders as follows; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4339/eng@2026-02-26 3

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a. The preliminary objection dated 7th February 2025 is merited and is hereby upheld. b. The appeal filed herein struck out. c. Costs awarded to the respondent. d. File is hereby closed. DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 26TH DAY OF FEBRUARY, 2026. ……………………… HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of; N/A by the Appellant. Mr. Sikuta Advocate for the Respondent. Ms. Salwa, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4339/eng@2026-02-26 4

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