1. I have considered the Preliminary Objection dated 28th April, 2024, together with the submissions of the parties and the applicable law.
2. The party raising the Preliminary Objection admitted that the facts of the matter are not entirely clear.
3. In particular, Counsel could not say with certainty, if the application dated 21st December, 2020 is in fact, res judicata. In particular, he could note state whether or not, as, as a matter of fact, the same had been dealt with conclusively, or point to a ruling issued in respect of all the matters raised in the said application.
4. Having considered the submissions of the parties, it is evident to me that in the present matter, the facts are indeed disputed, and accordingly, the matter does not in my view muster the test laid out in the seminal case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696, where it was held that:
“So far as I am aware 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 objection may dispose of the suit.”
5. Further, the court stated that a valid Preliminary Objection must first, raise a point of law based on ascertained facts and not on evidence:
“In the words of Sir Charles Newbold P, at page 701,
...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued 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.” (emphasis mine)
6. The rule for allowing a Preliminary Objection is therefore, simple, a Preliminary Objection may only be allowed to stand if it involves a point or matter of law and not facts, which ought to be canvassed at the full trial of a suit.
7. I note further, that Counsel for the Applicant contended that the Application dated 21st December, 2020 is still live, and a that a ruling is pending.
8. Again, the Respondent submitted that he did not know if this was the case, and could not say if all the prayers in that application had been determined with finality. Counsel for the Respondent spoke primarily to interim orders issued in respect of the said application, but was unable to say if the prayers dealing with warrants of attachment, and other final prayers queried by this court, in respect of the said application had been dealt with.
9. Based on the reasons set out above, I find that at this stage, the facts are clearly contested. Moreover, the parties, themselves have requested proceedings to determine the historical chronology of events. Accordingly, at this stage, this court may not determine if the issues raised in the application dated 9th April 2024 are with any degree of certainty, res judicata.
10. The upshot is that the Preliminary Objection fails. The same is dismissed with costs.
2. The party raising the Preliminary Objection admitted that the facts of the matter are not entirely clear.
3. In particular, Counsel could not say with certainty, if the application dated 21st December, 2020 is in fact, res judicata. In particular, he could note state whether or not, as, as a matter of fact, the same had been dealt with conclusively, or point to a ruling issued in respect of all the matters raised in the said application.
4. Having considered the submissions of the parties, it is evident to me that in the present matter, the facts are indeed disputed, and accordingly, the matter does not in my view muster the test laid out in the seminal case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696, where it was held that:
“So far as I am aware 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 objection may dispose of the suit.”
5. Further, the court stated that a valid Preliminary Objection must first, raise a point of law based on ascertained facts and not on evidence:
“In the words of Sir Charles Newbold P, at page 701,
...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued 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.” (emphasis mine)
6. The rule for allowing a Preliminary Objection is therefore, simple, a Preliminary Objection may only be allowed to stand if it involves a point or matter of law and not facts, which ought to be canvassed at the full trial of a suit.
7. I note further, that Counsel for the Applicant contended that the Application dated 21st December, 2020 is still live, and a that a ruling is pending.
8. Again, the Respondent submitted that he did not know if this was the case, and could not say if all the prayers in that application had been determined with finality. Counsel for the Respondent spoke primarily to interim orders issued in respect of the said application, but was unable to say if the prayers dealing with warrants of attachment, and other final prayers queried by this court, in respect of the said application had been dealt with.
9. Based on the reasons set out above, I find that at this stage, the facts are clearly contested. Moreover, the parties, themselves have requested proceedings to determine the historical chronology of events. Accordingly, at this stage, this court may not determine if the issues raised in the application dated 9th April 2024 are with any degree of certainty, res judicata.
10. The upshot is that the Preliminary Objection fails. The same is dismissed with costs.