1. This is a Ruling in respect of the 2nd Defendant’s Notice of Preliminary Objection dated 27th March, 2025.
Background Facts
2. The Plaintiff filed the Plaint dated 3rd February 2025 and instituted a suit against the Defendants herein.
3. The 2nd Defendant raised a Preliminary Objection dated 27th March, 2025 on points of law to be determined in limine that the entire suit is wholly incompetent. That the same does not lie as against the 2nd Defendant and should be struck out and dismissed with costs for the following reasons: -
1.) The 2nd Defendant is a corporation registered and domiciled in Uganda, having no presence in Kenya and therefore outside the jurisdiction of the Court.
2.) The Court has no jurisdiction to take cognizance and determine the suit in so far as the Plaintiff neither sought nor obtained leave of this Court to serve summons upon the 2nd Defendant as required by the provisions of Order 5, Rule 21 of the Civil Procedure Rules.
3.) There is no privity of contract between the Plaintiff and the 2nd Defendant in so far as the Plaintiff's cause of action is premised upon the Container Guarantee dated 8th August 2022 as the 2nd Defendant was not a party thereto.
4.) To the extent that the cause of action is predicated upon the Container Guarantee Form, this Court has no jurisdiction (under the Forum Non Conveniens Rule) as all disputes in connection with and arising out of the Container Guarantee were reserved for determination through Arbitration under the Arbitration Rules of the German Maritime Arbitration Association and German Law was applicable in any event.
Issues for determination
4. The Court has carefully considered the Objection raised therein as well as the written submissions, and the only issue for determination is;
a) Whether the preliminary objection is sustainable.
Analysis
5. As regards the issue of whether or not the Objection passes the test in Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696 , the same states as follows: -
“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 the pleadings, and which if argued as a preliminary point may dispose of the suit.”
6. 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.”
7. Some of the grounds raised in the Preliminary Objection require the Court to ascertain the facts, as some of the issues raised therein have been contested by the Plaintiff. They cannot be said to be pure points of law and thus fail this legal muster. For instance, the 2nd Defendant is asking the Court to determine whether service was properly effected or not would require the Court to evaluate evidence. This falls outside the scope of a Preliminary Objection. Whether the Container Guarantee Form ousted the jurisdiction of this Court, requires the Court to examine evidence. The same goes to the arguments that the Court lacks jurisdiction over the 2nd Defendant as a foreign registered corporation.
8. The issues raised by the 2nd Defendant maybe germane, but the Court cannot properly determine them by way of a Notice of Preliminary Objection. The Court need not say more at this juncture.
9. The Supreme Court weighed in on the issue of Preliminary Objections in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) and stated as follows-
“… Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”
10. Having carefully evaluated the matter, the Court is satisfied that the Preliminary Objection raised fails to satisfy the legal standard set out in the well-known Mukisa Biscuit decision. A proper preliminary objection must be founded on a pure point of law capable of disposing of the suit at the outset. In this instance, the Respondent’s objection is intertwined with disputed factual matters that would necessitate evidentiary examination and therefore cannot be determined on points of law alone.
11. Consequently, the objection cannot be sustained.
12. As to costs the same ordinarily follow the event, unless otherwise stated. As no reasons have been advanced to persuade this Court to rule otherwise, the costs arising out of the Preliminary Objection are awarded to the Plaintiff/Applicant.
Determination
13. The 2nd Defendant’s Notice of Preliminary Objection dated 27th March, 2025 is HEREBY dismissed and the costs thereof are awarded to the Plaintiff.
14. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Tanui for the Plaintiff/Applicant.
Mr. Mutua for the 1st Defendant/Respondent.
Mr. Otieno for the 2nd Defendant/Respondent.
Peter Wabwire - Court Assistant.
Background Facts
2. The Plaintiff filed the Plaint dated 3rd February 2025 and instituted a suit against the Defendants herein.
3. The 2nd Defendant raised a Preliminary Objection dated 27th March, 2025 on points of law to be determined in limine that the entire suit is wholly incompetent. That the same does not lie as against the 2nd Defendant and should be struck out and dismissed with costs for the following reasons: -
1.) The 2nd Defendant is a corporation registered and domiciled in Uganda, having no presence in Kenya and therefore outside the jurisdiction of the Court.
2.) The Court has no jurisdiction to take cognizance and determine the suit in so far as the Plaintiff neither sought nor obtained leave of this Court to serve summons upon the 2nd Defendant as required by the provisions of Order 5, Rule 21 of the Civil Procedure Rules.
3.) There is no privity of contract between the Plaintiff and the 2nd Defendant in so far as the Plaintiff's cause of action is premised upon the Container Guarantee dated 8th August 2022 as the 2nd Defendant was not a party thereto.
4.) To the extent that the cause of action is predicated upon the Container Guarantee Form, this Court has no jurisdiction (under the Forum Non Conveniens Rule) as all disputes in connection with and arising out of the Container Guarantee were reserved for determination through Arbitration under the Arbitration Rules of the German Maritime Arbitration Association and German Law was applicable in any event.
Issues for determination
4. The Court has carefully considered the Objection raised therein as well as the written submissions, and the only issue for determination is;
a) Whether the preliminary objection is sustainable.
Analysis
5. As regards the issue of whether or not the Objection passes the test in Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696 , the same states as follows: -
“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 the pleadings, and which if argued as a preliminary point may dispose of the suit.”
6. 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.”
7. Some of the grounds raised in the Preliminary Objection require the Court to ascertain the facts, as some of the issues raised therein have been contested by the Plaintiff. They cannot be said to be pure points of law and thus fail this legal muster. For instance, the 2nd Defendant is asking the Court to determine whether service was properly effected or not would require the Court to evaluate evidence. This falls outside the scope of a Preliminary Objection. Whether the Container Guarantee Form ousted the jurisdiction of this Court, requires the Court to examine evidence. The same goes to the arguments that the Court lacks jurisdiction over the 2nd Defendant as a foreign registered corporation.
8. The issues raised by the 2nd Defendant maybe germane, but the Court cannot properly determine them by way of a Notice of Preliminary Objection. The Court need not say more at this juncture.
9. The Supreme Court weighed in on the issue of Preliminary Objections in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) and stated as follows-
“… Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”
10. Having carefully evaluated the matter, the Court is satisfied that the Preliminary Objection raised fails to satisfy the legal standard set out in the well-known Mukisa Biscuit decision. A proper preliminary objection must be founded on a pure point of law capable of disposing of the suit at the outset. In this instance, the Respondent’s objection is intertwined with disputed factual matters that would necessitate evidentiary examination and therefore cannot be determined on points of law alone.
11. Consequently, the objection cannot be sustained.
12. As to costs the same ordinarily follow the event, unless otherwise stated. As no reasons have been advanced to persuade this Court to rule otherwise, the costs arising out of the Preliminary Objection are awarded to the Plaintiff/Applicant.
Determination
13. The 2nd Defendant’s Notice of Preliminary Objection dated 27th March, 2025 is HEREBY dismissed and the costs thereof are awarded to the Plaintiff.
14. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Tanui for the Plaintiff/Applicant.
Mr. Mutua for the 1st Defendant/Respondent.
Mr. Otieno for the 2nd Defendant/Respondent.
Peter Wabwire - Court Assistant.