Reliance Power Limited v Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidevi Bachulal Vyas)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.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
- 2.Whether the present suit is barred by the doctrine of sub judice under Section 6 of the Civil Procedure Act on account of pending BPRT Case No. E058 of 2025
- 3.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
- 4.Which party should bear the costs of this Application?
Key legal issues
#Whether the sub judice and res judicata objections qualified as a sustainable preliminary objection
The objection failed the Mukisa Biscuits test because it was blemished with disputed and unascertained facts, notably the BPRT pleadings and determination which were not placed before the Court
The Court applied the Mukisa Biscuits, Oraro v Mbaja and Aviation & Allied Workers principles that a preliminary objection must rest on a pure point of law. The Objector did not present the BPRT pleadings or determination, so the Court could not determine the jurisdictional questions without a protracted examination of untested documents. The overriding objective favoured deferring the factual issues to the full hearing where both parties could be heard, with no prejudice to the Defendant.
Whether the substantive sub judice and res judicata questions barred the suit
Both substantive questions were rendered moot because the threshold question on the sustainability of the preliminary objection had failed
Having found under Question (i) that the objections did not meet the test for preliminary objections, the Court held that the substantive questions under sections 6 and 7 of the Civil Procedure Act fell away without determination on the merits.
Costs of the preliminary objection
Costs of the preliminary objection were ordered to abide the outcome of the main suit, the objection not being far-fetched
The Court reviewed the principles on costs - discretion, costs following the event, compensation rather than penalty, and restitution in integrum - and, because the objection could not be described as far-fetched, declined to award costs immediately, instead deferring them to the outcome of the main suit.
Legal principles established
#- A preliminary objection must be a pure point of law, unblemished by disputed or unascertained facts; if it bears factual aspects calling for proof it is not a true preliminary objection
- A preliminary objection can properly be raised on the doctrines of sub judice and res judicata provided it passes the pure-point-of-law test
- Before striking out a pleading the Court should consider the closest alternative to striking out, such as a separate trial, to avoid prejudice
- Costs follow the event unless the Court finds good cause to negate that trajectory
Court orders
#- 1.The Defendant's Preliminary Objection is found without merit and dismissed
- 2.Costs incurred in the Preliminary Objection shall abide by the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya (Environment and Land Court jurisdiction over disputes relating to interests in land)
Relief refused
#Defendant's Preliminary Objection seeking dismissal of the suit under sections 6 and 7 of the Civil Procedure Act
The objection was not anchored on a pure point of law, being blemished with disputed, contested and unascertainable facts, as the BPRT pleadings and determination were not presented to the Court
Costs
Costs incurred in the Preliminary Objection shall abide by the outcome of the main suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Wherefore this Court finds the Defendant's Preliminary Objection without merit and dismisses it.
Costs incurred in the Preliminary Objection shall abide by the outcome of the main suit.
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.
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.
the Court should first consider the closest alternative to striking out, which will best serve the interests of administration of justice
A Court of justice should aim at sustaining a suit rather than terminating it by summary dismissal.
Issues in the judgment
#Preliminary Objection dated 21st May 2026 postdates the Grounds of Opposition dated 12th August 2025, yet the PO is treated as the surviving objection
Counsel for the plaintiff recorded as Mr. Chirchir/Mr. Kaptich in submissions but Mr. Songok in the attendance list
Paragraph 17 misstates the objection as engaging section 7 of the Limitation of Actions Act rather than section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reliance Power Limited v Rajesh B. Vyas (Sued as the Holder of a Power of Attorney for Laxmidevi Bachulal Vyas)", Case Analysis (2026). ELCLC Number E069 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5459/eng@2026-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.