i. Whether this suit is res judicata.
5.It is well settled that a PO must be on a pure point of law and cannot be raised if any fact has to be ascertained. This principle was clearly captured in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd  EA 696, where the East African Court of Appeal held as follows:
6.I disagree with the plaintiff on the submission that an issue of res judicata cannot be raised as a preliminary objection. The argument of res judicata raises a pure point of law. So long as the facts are readily ascertainable from the pleadings without the requirement for the Court to get into evidential enquiries to determine whether a matter is res judicata or not, then the same can be rightly argued as a preliminary objection. The facts herein are not contended and therefore this is an issue that can be rightfully determined as a preliminary objection.
7.Having said that, the doctrine of res judicata is provided for under Section 7 of the Civil Procedure Act which reads as follows:
8.The elements of res judicata were further enunciated by the Court of Appeal in the decision of the Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others,  eKLR. The Court stated as follows:
9.The defendants argue that the plaintiff filed a suit at the High Court, being HCCC 70 OF 2014, against the defendants, relating to the same cause of action. In the same year, the defendants allege that the suit was settled. Besides these assertions, the defendants did not bother to provide any evidence whatsoever in support of their claim. The Court has been left groping in the dark and the best that I can do is to rely on the pleadings before me.
10.It does not appear to be contested that there was a previous suit to wit HCCCOMM. 70 of 2014 Mahesh Meghji Shah v Kenya Canvas Limited and Jayantilal Meghji Shah and that the suit involved the same parties in the present suit. It is further not contested that the suit was withdrawn. The plaintiff avers at para. 11 of the plaint dated 29th June 2022, that HCCCOMM. 70 of 2014 was withdrawn to attempt amicable settlement, which failed.
11.At paragraph 11 (ii), (iii) and (iv) of the 2nd defendant’s statement of defence, the 2nd defendant acknowledges that following a family mediation, the parties agreed to settle HCCCOMM 70 of 2014 amicably and the plaintiff withdrew the suit. The bone of contention is whether the plaintiff was fully compensated as alleged by the defendants. The plaintiff strongly denied these allegations. Needless to say, the defendants have not brought any proof of such settlement before the Court.
12.Assuming therefore that the conditions a, b, c and e as enlisted by the Court of Appeal in the Independent Electoral and Boundaries Commission case were met, the bone of contention is whether condition (d) was met. The parties in their pleadings and submissions are clear about the fact that the suit previously filed was not heard and finally determined and as such does not meet the threshold of a matter that is res judicata.
13.The 1st and 2nd defendants submitted that the fact that the matter was withdrawn from Court in itself suggests that it was settled amicably. They then asserted that if the suit was not settled out of court, the plaintiff ought to have reinstated HCCCOMM. 70 of 2014 instead of filing a fresh suit.
14.My understanding of Order 25 is in concurrence with the Court, (Kasango, J) in Bahati Shee Mwafundi v Elijah Wambua,  eKLR. The Court found that:
15.This position was reaffirmed in Hezron Kamau Gichuru & 6 Others v Richardson Kipkoech Bundotich & 5 Others,  eKLR, where the Court observed as follows:
16.For all these reasons I am therefore not persuaded that the suit is res judicata by virtue of having been withdrawn.
ii. Whether the present suit offends the provisions of Order 25 rule 4 of the Civil Procedure Rules.
17.Order 25 Rule 4 of the Civil Procedure Rules provides as follows:
18.The 1st and 2nd defendants have not produced any evidence to show that they obtained costs of the withdrawn suit so as to be entitled to a stay of proceedings until the payment of the costs. Even if, presumably, the court did order such costs, as would be the norm, there is still no evidence that the defendants have been in pursuit of such costs (if any). This ground therefore fails.