When not to raise a preliminary objection

When not to raise a preliminary objection

By Newton Arori

A preliminary objection refers to a point of law raised by a defendant, usually at the preliminary stage of a suit. If the court upholds the objection, that renders the rest of the proceedings impossible or unnecessary and consequently, the case will be dismissed.

Locally, the leading authority on preliminary objections is the case of ‘Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696’, where Justice Law rendered himself 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. Examples are: an objection to the jurisdiction of the Court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Thanks to its determinative nature if successfully canvassed, a preliminary objection is a lethal weapon in a defendant’s arsenal. It is an expeditious way to win a case. Why take the trouble of defending a case on its merits when you can have it dismissed summarily?

There are caveats, however. In the Mukisa Biscuit case, Justice Newbold cautioned, “A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion, confuse the issues. This improper practice should stop.”

It turns out that many are yet to heed Justice Newbold’s warning. While it is abundantly clear that a preliminary objection should only be raised on pure matters of law, on undisputed facts and where court discretion is not required, litigants continue to file preliminary objections for all manner of wrong reasons. The following are examples of such reasons.

Conflict of interest

This is illustrated by the case of ‘Simon Kariuki v Geoffrey Muhoro Mwangi (2014) eKLR’. Here, the Plaintiff, Simon Kariuki filed the suit against the Defendant, Geoffrey Muhoro Mwangi. In addition to the main suit, the Plaintiff filed an application seeking injunction orders restraining the Defendant from dealing with the suit property. The application was heard, and the court issued a temporary injunction.

Subsequently, Mwangi’s counsel filed his memorandum of appearance. This is what triggered a notice of preliminary objection by Kariuki. The notice of preliminary objection raised an alleged point of law in seeking to have Mwangi’s counsel, PK Njoroge recuse himself from appearing for Mwangi. Kariuki’s main contention was that Njoroge had earlier represented both himself (Kariuki) and Mwangi in the same subject matter. Thus, Kariuki argued, there was conflict of interest, as Njoroge was privy to confidential information which went to the core of the present suit, and should therefore not be allowed to act for either party since the information he possessed could be used against the opposing party.

Justice L N Waithaka observed that no single point of law had been raised and that what had been raised were purely matters of fact which the Defendant ought to have had a chance to respond to. What Kariuki should have done was to raise matters of conflict of interest by filing a formal application.

“In my view and I so hold that the issues raised in the notice of preliminary objection have no merit and the same is hereby dismissed with costs,” the Judge held.

This case bears close resemblance to ‘National Bank of Kenya v Peter Kipkoech Korat and Another (2005) eKLR’. Here, National Bank sued Peter Kipkoech Korat for a debt. After the bank moved the court in an application for summary judgement against Korat, he raised a preliminary objection to the entire suit. His grounds of objection were that the suit was not maintainable due to conflict of interest between the bank’s firm of advocates and himself.

In this case too, the preliminary objection was overruled. Justice Jean Gacheche held: “It is clear that the issues raised by the Defendants pertaining to representation of these parties would require evidence and in which case they cannot be entertained by way of preliminary objection as relations cannot be inferred and on that ground alone, the objection cannot be sustained.”

Territorial Jurisdiction

The case of ‘David Karobia Kiiru v Charles Gitoi & Another (2018) eKLR’ entailed a land dispute. After the Plaintiff filed the suit, the Defendant responded by filing a preliminary objection alleging, among other things, that the Nakuru Chief Magistrate’s Court (where the case was filed) lacked jurisdiction to hear and determine the case.

The issue in contention was where the case should have been filed. The Defendant argued that since the land in dispute was situated in Laikipia County, the case ought to have been filed in Nyahururu or Nanyuki (within Laikipia County) and not Nakuru.

The Magistrate’s Court upheld the objection, and dismissed the Plaintiff’s suit. Dissatisfied, the Plaintiff appealed to the Environment and Land Court. There, Justice Ohungo found that the Magistrate was wrong in upholding the Defendant’s preliminary objection. He stated: “The learned magistrate had discretion to handle the matter in such a way as to give parties a chance to have the suit heard within the local limits of whose jurisdiction the property is situate. A pragmatic approach in the circumstances would have been to order the parties to file an appropriate application to this court seeking transfer of the suit to the appropriate court station.”

In the end, the ruling upholding the preliminary objection was replaced with an order dismissing it. “Parties are at liberty to make an appropriate application for the transfer of the case to the appropriate court station,” the court held.

Misjoinder of parties

In the case of ‘William Kiprono Towett & 1597 others v Farmland Aviation (2016) eKLR’ the Defendant had engaged in aerial spraying of large scale wheat farms in Narok District with a view to killing weeds. While at it and due to the alleged carelessness on the Defendants’ part, the pesticide allegedly affected plant, animal and human health adversely resulting in skin irritations and miscarriages. The Plaintiffs sued demanding Sh376, 565, 859 in damages.

The Defendant raised a preliminary objection opposing the alleged misjoinder of 1598 parties to the suit. According to the Defendant, each Plaintiff should have filed a separate claim arising from his/ her circumstances. The High Court upheld the objection, thus provoking an appeal from the Plaintiff.

At the Court of Appeal, Justices Waki, Nambuye and Kiage dismissed the preliminary objection with costs to the Plaintiff holding: ‘We are of the considered view that the preliminary objection did not raise any pure point of law. By and large the Defendants dwelt on the character of the suit before the trial court in terms of the number of parties involved…whereas the trial court was of the considered opinion that the suit before it could not be conveniently tried and defended as filed, the court was at liberty and should have, in our considered opinion, either upon the application of any party or on its own motion, ordered separate trials or made such order as may be expedient.”

It is apt to conclude with the words of Justice Ojwang in  Oraro v Mbaja (2005) eKLR’, “A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.” (

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