DRAFTDRAFT
Introduction
1. The Petitioner in the Petition dated 23 rd October 2025 challenges the Respondents’ procurement process in relation to Tender No. KNTC/TENDER/IMPORT/003/2025 – 2026 which was an invitation for interested persons to submit their bids in view of supply of duty – free rice.
2. The Tender was allegedly cancelled on 10 th September 2025 soon after 16 firms were named as successful bidders on 9 th September 2025. The Petitioner protests that the Respondents did not adhere to the set procedure for cancellation of tenders under Section 3 of the Public Procurement and Asset Disposal Act as read with Article 10, 201 and 227 of the Constitution.
3. Fundamentally, the Petitioner asserts that the process did not adhere to the constitutional principles of fairness, transparency, competitiveness, cost effectiveness and was also not equitable. Considering this, the Petitioner seeks the following reliefs:
i. A conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
ii. A conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
iii. A conservatory order be issued suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
iv. A conservatory order be issued suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
v. Any other order that the Court may deem just and fit to grant in the interest of justice and fairness.
4. Accompanying the Petition, the Petitioner filed a Notice of Motion Application dated 23/10/2025 seeking conservatory orders.
5. However, in opposition, the 1 st , 3 rd , 4 th , 5 th and 7 th Respondents filed a Notice of Preliminary Objection dated 29/10/25 against both the Petition and the Application.
6. On 30/10/2025, the Court directed that the Preliminary Objection and the Application to be heard together. The Court will determine the Preliminary Objection first, should it succeed, the Court will cease jurisdiction and take no further step. If the Preliminary objection fails, the Court will proceed and determine the Application on merits.
The Application
7. The Petitioner in the Notice of Motion application of even date seeks orders that:
i. Spent.
ii. Pending the hearing and determination of this Petition, a conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
iii. Pending the hearing and determination of this Application, a conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
iv. Pending the hearing and determination of this Petition, a conservatory order be suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
v. Pending the hearing and determination of this Application, a conservatory order be issued suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
vi. Any other order that the Court may deem just and fit to grant in the interest of justice and fairness.
8. The Application is supported by the Petitioner’s affidavit, sworn on even date and the grounds on the face of the Application. The Petitioner states that he is a small-scale rice commercial retailer in Kenya and files this suit on his behalf and other small-scale rice retailers.
9. He avers that vide Gazette Notice No.10353 dated 17 th July 2025, the 5 th Respondent informed the public that the Government would be importing 500,000 metric tonnes of Grade 1 white rice, duty free.
10. According to him, the Government in doing so is not acting in good faith. This is because the 3 rd Respondent had initially advertised a tender for supply of duty-free rice, which was marred with controversies, inconsistencies leading to its abrupt cancellation.
11. The Petitioner also accuses the Government of failing to support its decision with data as the decision said driven by greed. He further contends that the importation of the duty-free rice will flood the market and leave the small-scale commercial retailers disadvantaged.
1 st ,3 rd , 4 th , 5 th and 7 th Respondents’ Case
12. These Respondent’s through the Principal Secretary, Dr.Kipronoh Ronoh filed a Replying Affidavit sworn on 15 th November 2025.
13. On a preliminary note, he swore that the Application is premised on a misrepresentation of material facts and non-disclosure of relevant information. Further, that the Application does not also meet the threshold for issuance of conservatory orders.
14. He informs that prior to filing of this suit, there were other Petitions filed challenging the impugned Gazette Notice. These are: HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry of Agriculture, Livestock And Fisheries & Agriculture Food Authority & Another and HCCHRPET/E037/2025 – Ibrahim Muhumed Mohamed & Abdiaziz Moge Noor V Agriculture And Food Authority and HCCHRPET/E650/2025- Japheth Kirui Vs State Law Office .
15. He avers that the Court in its Ruling in HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & Agriculture allowed importation of 250,000 Metric tonnes of Grade 1 rice. This in effect granted clearance for importation of this rice and which has already been shipped into the Country. He avers that if the orders issued herein are granted, there is a risk of the same being in conflict with these orders. He further avers that the Application is res judicata as the issues raised herein have already been determined.
16. He moreover adds that there have been other matters that have been filed in Court raising similar issues being: Constitutional Petition No. E029 of 2025 – John Nderitu Mirichu V Cabinet Secretary, National Treasury And Planning & 6 Others, Constitutional Petition No. HCCOMMMISC/E1029/2025 – Taxwatch Africa V Cabinet Secretary, National Treasury and Planning & 6 Others and HCCHRPET/E650/2025- Japheth Kirui Vs State Law Office .
17. He argues that this is a clear abuse of the Court process as the parties have been filing various matters seeking conservatory orders and soon thereafter withdrawing them and filing fresh matters in pursuit of conservatory orders. Equally, he argues that the present Petition is sub judice owing to the existence of the multiple suits.
18. He contends that the existing conservatory orders presently in force are against public interest as they have disrupted the lawful regulatory and importation framework for rice thus threatening food security and market stability. As such, he argues that the balance in this matter tilts in favour of upholding the regulatory framework since issuance of the orders poses a significant threat to fundamental rights and freedoms.
19. Further from this, he avers that the Petition primarily seeks to challenge a procurement process undertaken by the Respondents. He stresses that this falls squarely within the purview of the Public Procurement Administrative Review Board under the Public Procurement and Asset Disposal Act.
20. In light of this, he argues that this Court lacks jurisdiction to entertain this matter.
2 nd Respondent’s Case
21. In reaction to the Application, the 2 nd Respondent, Dr. Bruno Linyiru filed a Replying Affidavit sworn on 29 th October 2025.
22. He contended that the impugned Gazette Notice No. 10353 was subject of prior judicial proceedings being: HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry Of Agriculture, Livestock And Fisheries & Agriculture And Food Authority & Another . He notes that the Court in its Ruling allowed importation of 250,000 metric tonnes of rice. He states that a substantial amount of this rice has already been shipped into the Country.
23. He further informs that an Appeal was preferred in the matter and is pending before the Court of Appeal in NYERI COACAPPL/E140/2025 Farmers Party Vs. The Cabinet Secretary National Treasury & Planning & 5 Others (Arising From Kerugoya Hcchrpet/E009/2025 Farmers Party -Vs- The Cabinet Secretary, National Treasury & Planning And 5 Others). On this premise, he avers that this Court ought to refrain from entertaining the present Petition.
24. He as well avers that the Petition and Application offend the doctrine of sub judice as the Petitioner had previously filed Constitutional Petition No. E029 Of 2025 – John Nderitu Mirichu V Cabinet Secretary, National Treasury and Planning & 6 Others before the High Court at Kisumu, raising substantially identical issues. He avers that the Petitioner subsequently withdrew this matter only to refile the instant Petition.
25. In addition, he notes that there is also another Petition that raises identical issues in Constitutional Petition No. HCCOMMMISC/E1029/2025 – Taxwatch Africa V Cabinet Secretary, National Treasury and Planning & 6 Others . In this regard, the Petitioner is accused of forum shopping with the aim of attaining a favourable decision, which action is an abuse of the Court process.
26. He adds that at the present time there are other Petitions raising parallel issues being; HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry Of Agriculture, Livestock And Fisheries & Agriculture And Food Authority & Another and HCCHRPET/E037/2025 – Ibrahim Muhumed Mohamed & Abdiaziz Moge Noor V Agriculture And Food Authority and HCCHRPET/E650/2025- Japheth Kirui Vs State Law Office .
27. In light of the doctrine of sub judice, he argues that this Court lacks jurisdiction to entertain this matter. He for this reason urges the Court to dismiss both the Petition and the Application.
6 th Respondent’s Case
28. In response to the Application and Petition, the 6 th Respondent filed its Grounds of Opposition dated 12 th November 2025 on the basis that:
i. The Respondent is authorized under the Kenya Revenue Authority Act,1995 to administer Revenue Acts of Parliament and Regulations listed under the First Schedule to the Kenya Revenue Authority Act, 1995 which includes the East Africa Community Customs Management Act.
ii. Section 5 (2) of the East Africa Community Customs Management Act, 2004 provides that (2) the 6 th Respondent shall be responsible for the management and control of the Customs including the collection of, and accounting for, Customs revenue in the respective Partner State.
iii. The 6 th Respondent does not take part in the allocation of quotas of imports and its mandate is only to ensure that the goods that enter or leave the country as per the set legal framework and all permits are available.
iv. Both the Notice of Motion Application and Petition do not disclose alleged violations perpetuated by the 6 th Respondent as required by the principles set in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR .
v. The Petition fails to achieve the threshold for a Constitutional Petition as set by Mutunga Rules (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013).
vi. The Gazette Notice did not give specification on who can import duty free rice into Kenya and the Petitioners have failed to provide evidence that certain classes of people (including those that allegedly won the tender) have been seen stopped from importing duty free rice within the quota.
vii. The Gazette Notice is an executive directive aimed at mitigating rice shortage in the Country. Courts have been restrained from interfering with such executive processes at this interim stage.
viii. Prematurely suspending the Gazette Notice at this point not only strains the local consumer who will be subjected to a shortage.
ix. The 6 th Respondent being the government agency responsible for collection and accounting of taxes is mandated by law to follow the Gazette Notice published on 28 th July 2025 and the Orders of the Court in Kerugoga HCCHRPET E009 of 2025: Farmers Party Vs. State Law Office .
x. Noting that the Gazette Notice is time-bound, any suspension is final in nature and may simply render the Gazette Notice nugatory.
xi. The Petitioner has failed to demonstrate the public interest being protected by the Petition and the Notice of Motion application.
xii. It is in public interest that the Court only acts when there is a demonstrable injury and not on apprehension.
xiii. The prayers sought are in a final nature and have the effect of making a determination on the Petition without the Respondents having an opportunity to place the documents and responses before the Court.
xiv. The application and Petition should be dismissed as the Petitioner have failed to demonstrate the prejudice they would suffer if the Orders are not granted.
Other Parties Case
29. The other Parties’ response to the Application is not in the Court File or Court Online Platform (CTS).
The Preliminary Objection
30. The 1 st , 3 rd , 4 th , 5 th and 7 th Respondents filed a Notice of Preliminary Objection dated 29 th October 2025, the subject of this ruling. They objected to the Petition on the basis that:
i. The Application and Petition violates the doctrine of exhaustion hence the Court lacks jurisdiction to hear and determine it.
ii. The matter is a procurement dispute falling under the dispute resolution mechanism of the Public Procurement Administrative Review Board under the Public Procurement Asset Disposal Act.
iii. The Application and Petition militates against the Ruling issued in Kerugoya HCCRPET E009/2025 on 19 th August 2025.
iv. The Application and Petition is a clear abuse of the Court process as there are ongoing suits in KERUGOYA HCCRPET E009/2025, MOMBASA HCCRPET E037/2025, KISUMU HCCRPET E029/2025, NAIROBI HCCRPET E1029/2025 and NAIROBI HCCRPET E650/2025 and clearly the instant Application and Petition is sub judice and should be struck out.
v. The Court should take notice of the numerous attempts in defeating public interest as upheld by Court in KERUGOYA HCCRPET E009/2025 by filing of multiple suits before different Courts hence amounting to abuse of the Court process in this Court.
vi. The Petitioner has not discharged the evidentiary burden required of them to demonstrate which right or duty is owed to it and the manner it has been violated by the Respondents.
vii. In sum, the instant Application and Petition is primarily hinged on suspending enforcement, implementation and operation of the impugned Gazette Notice No. 10353 dated 17 th July 2025, which in effect can only issue on appeal, which mechanism is not within the jurisdictional remit of this Court.
Submissions to the Application
31. The Parties submissions to the Petitioner’s Application are not in the Court file or Court Online Platform (CTS), save for the Petitioner and 1 st and 2 nd Respondent.
Submissions to the Preliminary Objection
1 st , 3 rd ,4 th ,5 th and 7 th Respondents’
32. Deputy Chief State Counsel, Kaumba S.O. filed submissions dated 6 th November 2025.
33. Counsel reiterating these Parties responses submitted that the instant suit relates to the integrity and legality of the procurement proceedings, a subject falling within the jurisdiction of the Public Procurement Administrative Review Board. Second, invokes the doctrine of sub judice in view of the ongoing suits and equally this suit militates against the Ruling issued in Kerugoya HCCRPET E009/2025 .
34. On the first point, Counsel submitted that the Petitioner seeks a conservatory order suspending the ongoing procurement process of importing grade 1 milled white rice, duty - free. Counsel submitted that this is provided for under Section 28(1)(a) of the Public Procurement and Asset Disposal Act wherein the Public Procurement Administrative Review Board is clothed with the jurisdiction of entertaining such disputes. This is as such argued to be offensive to the doctrine of exhaustion. Reliance was placed in Justus Kariuki Mate & another v. Martin Nyaga Wambora & another (2017) eKLR where it was held that:
“From the facts of this case, it is clear to us that the integrity of Court Orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of government responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practice from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case.”
35. Comparable reliance was placed in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR), United Bank of India vs Satyawati Tondon & Others; (2010) 8 SCC and R v National Environmental Management Authority, CA No 84 of 2010; [2011] eKLR .
36. On the second point, Counsel submitted that the issue of importation of rice as a result of the impugned Gazette Notice and the consequential procurement proceedings are the subject of the cited suits, earlier filed in public interest before other Courts. In light of this, Counsel stressed that the matter is sub judice and thus an abuse of the Court process. Reliance was placed in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR where it was held that:
“The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”
37. Further reliance was placed on Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR , and Gathariki v Cheko Plot Owners Association & another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) .
38. Lastly, Counsel submitted that this matter goes against the Ruling delivered in Kerugoya HCCRPET E009/2025 in that it allowed the impugned importation of rice. For this reason, Counsel stressed that a Court of concurrent jurisdiction cannot proceed to issue an order counteracting the issued order. Counsel reasoned that the essence of this Application is not available to this Court.
39. To buttress this point reliance was placed in Philip Kipchirchir Moi v the Hon. Attorney General & Another (Nairobi Petition No. 65 of 2012) [2013] eKLR where it was held that:
“I must begin by dispelling the fallacy that the Constitutional and Human Rights Division of the High Court in Nairobi has jurisdiction to superintend, supervise, direct, guide, shepherd and/or purport to mend the mistakes, real or perceived, of other Divisions of the High Court in Nairobi or elsewhere in Kenya. In spite of the continued and consistent stand of judges of that Division that it cannot have been the intention of the framers of the Constitution that such a position should exist, parties in every conceivable case, continue to invoke that fallacious and misguided jurisdiction.”
40. More was placed on Peter Ng’ang’a Muiruri v Credit Bank Ltd & 2 others (Nairobi Civil Appeal No. 203 of 2006); [2008] eKLR and Kenya Hotel Properties Limited v Attorney General & 5 others (Petition No. 16 of 2020); [2022] KESC 62 (KLR) .
The Petitioner
41. The Petitioner in response to both his Application and the Preliminary Objection filed submissions dated 12 th November 2025 through E.N. Namude Associates and Advocates. The issues underscored for discussion are: whether the notice of Preliminary Objection meets the required threshold in law and whether the Petitioner’s application for the grant of conservatory orders has merit .
42. On the first issue, Counsel submitted that the Petitioner’s case is that the impugned Gazette Notice which was made pursuant to Section 114 (2) of the East African Community Customs Management Act, as read with item 20 of Part B of the Fifth Schedule to the Act, is defective for it lacks a proper legal foundation. For this reason, its enforcement and implementation ought to be halted as any importation resulting from the notice will be a result of illegal procedure. Counsel emphasized that it is apparent in the circumstances of this case that the entire process, did not follow the proper procedure, resulting in a violation of constitutional provisions.
43. Counsel relying on Section 27 of the Public Procurement and Asset Disposal Act contended that since the Petitioner was not a participant in the procurement process the issues raised herein should be addressed by this Court not the Procurement Administrative Review Board as alleged. Counsel as well opposed the assertion that the matter in KERUGOYA HCCRPET E009/2025 is similar to this matter.
44. On the second issue, Counsel submitted that the conservatory orders are granted when there’s an issue involving public interest and that for the orders to be granted, the applicant must demonstrate a prima facie case with a likelihood of success and also demonstrate that the applicant’s case would be nugatory if the orders are not granted. Reliance was placed in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General, [2011] eKLR where it was held that:
“It is important to point out that the arguments that were advanced by counsel and that I will take into account in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the petitioner’s application and not the petition. I will not, therefore, delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires demonstrating that he has a prima facie case with a likelihood of success and that, unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution."
45. Additional reliance was placed in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) .
46. Counsel submitted that Petitioner’s case is that Articles 27, 35, and 46 of the Constitution were violated when the Government chose to import duty-free rice without a clear legal basis. It was argued that the entire process lacks transparency and accountability, aspects of which should be examined further at the hearing of the Petition.
The 2 nd Respondent
47. In response to both the Preliminary Objection and Application, the 2 nd Respondent through Theuri Wesonga and Company Advocates filed submissions dated 10 th November 2025. Counsel highlighted the key issues as: whether the Petition is sub judice, whether the institution of the present Petition amounts to an abuse of the court process and whether the preliminary objection and conservatory order meets the threshold .
48. On the first issue, Counsel relying in Section 6 of the Civil Procedure Act submitted that this suit offends the doctrine of sub judice owing to the earlier pending suits revolving around the same matter. Counsel stressed that sub judice is a jurisdictional bar that can be raised as a preliminary objection as held in Republic v Paul Kihara Kariuki, Attorney General & 2 others ex parte Law Society of Kenya [2020] eKLR .
49. Comparable reliance was also placed in Thiba Min. Hydro Co. Ltd (supra) and Kenya National Commission on Human Rights (supra).
50. On the second issue, Counsel submitted that in light of the existence of the doctrine of sub judice and Petitioner’s awareness of the multiple suits in this matter, this suit is an abuse of the Court process. Reliance was placed in Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 where it was held that:
“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”
51. Further reliance was placed on Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR) , Daniel Mugendi v Kenyatta University & 3 Others [2013] eKLR and Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR .
52. Counsel in addition underscored that this matter is in direct conflict with the Ruling in Kerugoya HCCRPET E009 of 2025 , which authorized the importation of rice in question. Counsel emphasized that a Court of concurrent jurisdiction lacks the mandate to sit in appeal, review, or otherwise re-open the findings of another Court. As such, this clearly affirms that a Court of the same level, or any other Court, cannot purport to review or vary an order already made by a competent Court in a separate proceeding as held in Manchester Outfitters Limited & 2 Others v Galot Holdings Limited & 3 Others [2025] KEELC 6626 (KLR) .
53. On the final issue, Counsel submitted that the Petition revolves around Tender No. KNTC/TENDER/IMPORT/003/2025-2026 which was issued by the 3 rd Respondent. Counsel submitted that this dispute relates to the Public Procurement and Asset Disposal Act, 2020 as deals with the integrity and legality of ongoing procurement proceedings.
54. Counsel highlighted that this jurisdiction is vested in the Public Procurement Administrative Review Board under Section 28(1) (a) of the Public Procurement and Asset Disposal Act. Considering this, Counsel stressed that the Petitioner was required to exhaust this mechanism before approaching this Court under the doctrine of exhaustion. Counsel equally relied in Justus Kariuki Mate & another (supra) to buttress this point.
55. Equally reliance was placed in Speaker of National Assembly v Karume [1992] KLR 21, United Bank of India Vs. Satyawati Tondon & others;(2010) 8 SCC and R v National Environmental Management Authority, CA No. 84 of 2010; (2011) eKLR .
ANALYSIS AND DETERMINATION
56. It is my considered opinion that the issues that arises for determination are:
i. Whether the 7 th Respondent’s Preliminary Objection is merited.
ii. Whether the Petitioner’s Application for conservatory orders should be allowed.
Whether the 7 th Respondent’s Preliminary Objection is merited.
57. The threshold of a Preliminary Objection was summarized in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) EA 696 page 700 when the Court observed as follows: -
'So far as I am aware, a preliminary objection consists of a pure 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. Examples are an objection to the jurisdiction of the court, or 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.
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…”
58. Likewise, the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR) observed as follows:
“…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. The facts are deemed agreed, as they are prima facie presented in the ple
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Introduction
1. The Petitioner in the Petition dated 23 rd October 2025 challenges the Respondents’ procurement process in relation to Tender No. KNTC/TENDER/IMPORT/003/2025 – 2026 which was an invitation for interested persons to submit their bids in view of supply of duty – free rice.
2. The Tender was allegedly cancelled on 10 th September 2025 soon after 16 firms were named as successful bidders on 9 th September 2025. The Petitioner protests that the Respondents did not adhere to the set procedure for cancellation of tenders under Section 3 of the Public Procurement and Asset Disposal Act as read with Article 10, 201 and 227 of the Constitution.
3. Fundamentally, the Petitioner asserts that the process did not adhere to the constitutional principles of fairness, transparency, competitiveness, cost effectiveness and was also not equitable. Considering this, the Petitioner seeks the following reliefs:
i. A conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
ii. A conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
iii. A conservatory order be issued suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
iv. A conservatory order be issued suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
v. Any other order that the Court may deem just and fit to grant in the interest of justice and fairness.
4. Accompanying the Petition, the Petitioner filed a Notice of Motion Application dated 23/10/2025 seeking conservatory orders.
5. However, in opposition, the 1 st , 3 rd , 4 th , 5 th and 7 th Respondents filed a Notice of Preliminary Objection dated 29/10/25 against both the Petition and the Application.
6. On 30/10/2025, the Court directed that the Preliminary Objection and the Application to be heard together. The Court will determine the Preliminary Objection first, should it succeed, the Court will cease jurisdiction and take no further step. If the Preliminary objection fails, the Court will proceed and determine the Application on merits.
The Application
7. The Petitioner in the Notice of Motion application of even date seeks orders that:
i. Spent.
ii. Pending the hearing and determination of this Petition, a conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
iii. Pending the hearing and determination of this Application, a conservatory order be issued suspending the enforcement, implementation, and/or operation of gazette notice number 10353 dated July 17, 2025.
iv. Pending the hearing and determination of this Petition, a conservatory order be suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
v. Pending the hearing and determination of this Application, a conservatory order be issued suspending the ongoing procurement process of importing grade 1 milled white rice duty-free.
vi. Any other order that the Court may deem just and fit to grant in the interest of justice and fairness.
8. The Application is supported by the Petitioner’s affidavit, sworn on even date and the grounds on the face of the Application. The Petitioner states that he is a small-scale rice commercial retailer in Kenya and files this suit on his behalf and other small-scale rice retailers.
9. He avers that vide Gazette Notice No.10353 dated 17 th July 2025, the 5 th Respondent informed the public that the Government would be importing 500,000 metric tonnes of Grade 1 white rice, duty free.
10. According to him, the Government in doing so is not acting in good faith. This is because the 3 rd Respondent had initially advertised a tender for supply of duty-free rice, which was marred with controversies, inconsistencies leading to its abrupt cancellation.
11. The Petitioner also accuses the Government of failing to support its decision with data as the decision said driven by greed. He further contends that the importation of the duty-free rice will flood the market and leave the small-scale commercial retailers disadvantaged.
1 st ,3 rd , 4 th , 5 th and 7 th Respondents’ Case
12. These Respondent’s through the Principal Secretary, Dr.Kipronoh Ronoh filed a Replying Affidavit sworn on 15 th November 2025.
13. On a preliminary note, he swore that the Application is premised on a misrepresentation of material facts and non-disclosure of relevant information. Further, that the Application does not also meet the threshold for issuance of conservatory orders.
14. He informs that prior to filing of this suit, there were other Petitions filed challenging the impugned Gazette Notice. These are: HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry of Agriculture, Livestock And Fisheries & Agriculture Food Authority & Another and HCCHRPET/E037/2025 – Ibrahim Muhumed Mohamed & Abdiaziz Moge Noor V Agriculture And Food Authority and HCCHRPET/E650/2025- Japheth Kirui Vs State Law Office .
15. He avers that the Court in its Ruling in HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & Agriculture allowed importation of 250,000 Metric tonnes of Grade 1 rice. This in effect granted clearance for importation of this rice and which has already been shipped into the Country. He avers that if the orders issued herein are granted, there is a risk of the same being in conflict with these orders. He further avers that the Application is res judicata as the issues raised herein have already been determined.
16. He moreover adds that there have been other matters that have been filed in Court raising similar issues being: Constitutional Petition No. E029 of 2025 – John Nderitu Mirichu V Cabinet Secretary, National Treasury And Planning & 6 Others, Constitutional Petition No. HCCOMMMISC/E1029/2025 – Taxwatch Africa V Cabinet Secretary, National Treasury and Planning & 6 Others and HCCHRPET/E650/2025- Japheth Kirui Vs State Law Office .
17. He argues that this is a clear abuse of the Court process as the parties have been filing various matters seeking conservatory orders and soon thereafter withdrawing them and filing fresh matters in pursuit of conservatory orders. Equally, he argues that the present Petition is sub judice owing to the existence of the multiple suits.
18. He contends that the existing conservatory orders presently in force are against public interest as they have disrupted the lawful regulatory and importation framework for rice thus threatening food security and market stability. As such, he argues that the balance in this matter tilts in favour of upholding the regulatory framework since issuance of the orders poses a significant threat to fundamental rights and freedoms.
19. Further from this, he avers that the Petition primarily seeks to challenge a procurement process undertaken by the Respondents. He stresses that this falls squarely within the purview of the Public Procurement Administrative Review Board under the Public Procurement and Asset Disposal Act.
20. In light of this, he argues that this Court lacks jurisdiction to entertain this matter.
2 nd Respondent’s Case
21. In reaction to the Application, the 2 nd Respondent, Dr. Bruno Linyiru filed a Replying Affidavit sworn on 29 th October 2025.
22. He contended that the impugned Gazette Notice No. 10353 was subject of prior judicial proceedings being: HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry Of Agriculture, Livestock And Fisheries & Agriculture And Food Authority & Another . He notes that the Court in its Ruling allowed importation of 250,000 metric tonnes of rice. He states that a substantial amount of this rice has already been shipped into the Country.
23. He further informs that an Appeal was preferred in the matter and is pending before the Court of Appeal in NYERI COACAPPL/E140/2025 Farmers Party Vs. The Cabinet Secretary National Treasury & Planning & 5 Others (Arising From Kerugoya Hcchrpet/E009/2025 Farmers Party -Vs- The Cabinet Secretary, National Treasury & Planning And 5 Others). On this premise, he avers that this Court ought to refrain from entertaining the present Petition.
24. He as well avers that the Petition and Application offend the doctrine of sub judice as the Petitioner had previously filed Constitutional Petition No. E029 Of 2025 – John Nderitu Mirichu V Cabinet Secretary, National Treasury and Planning & 6 Others before the High Court at Kisumu, raising substantially identical issues. He avers that the Petitioner subsequently withdrew this matter only to refile the instant Petition.
25. In addition, he notes that there is also another Petition that raises identical issues in Constitutional Petition No. HCCOMMMISC/E1029/2025 – Taxwatch Africa V Cabinet Secretary, National Treasury and Planning & 6 Others . In this regard, the Petitioner is accused of forum shopping with the aim of attaining a favourable decision, which action is an abuse of the Court process.
26. He adds that at the present time there are other Petitions raising parallel issues being; HCCHRPET/E009/2025 – Farmers Party V Cabinet Secretary, Ministry Of Agriculture, Livestock And Fisheries & Agriculture And Food Authority & Another and HCCHRPET/E037/2025 – Ibrahim Muhumed Mohamed & Abdiaziz Moge Noor V Agriculture And Food Authority and HCCHRPET/E650/2025- Japheth Kirui Vs State Law Office .
27. In light of the doctrine of sub judice, he argues that this Court lacks jurisdiction to entertain this matter. He for this reason urges the Court to dismiss both the Petition and the Application.
6 th Respondent’s Case
28. In response to the Application and Petition, the 6 th Respondent filed its Grounds of Opposition dated 12 th November 2025 on the basis that:
i. The Respondent is authorized under the Kenya Revenue Authority Act,1995 to administer Revenue Acts of Parliament and Regulations listed under the First Schedule to the Kenya Revenue Authority Act, 1995 which includes the East Africa Community Customs Management Act.
ii. Section 5 (2) of the East Africa Community Customs Management Act, 2004 provides that (2) the 6 th Respondent shall be responsible for the management and control of the Customs including the collection of, and accounting for, Customs revenue in the respective Partner State.
iii. The 6 th Respondent does not take part in the allocation of quotas of imports and its mandate is only to ensure that the goods that enter or leave the country as per the set legal framework and all permits are available.
iv. Both the Notice of Motion Application and Petition do not disclose alleged violations perpetuated by the 6 th Respondent as required by the principles set in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR .
v. The Petition fails to achieve the threshold for a Constitutional Petition as set by Mutunga Rules (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013).
vi. The Gazette Notice did not give specification on who can import duty free rice into Kenya and the Petitioners have failed to provide evidence that certain classes of people (including those that allegedly won the tender) have been seen stopped from importing duty free rice within the quota.
vii. The Gazette Notice is an executive directive aimed at mitigating rice shortage in the Country. Courts have been restrained from interfering with such executive processes at this interim stage.
viii. Prematurely suspending the Gazette Notice at this point not only strains the local consumer who will be subjected to a shortage.
ix. The 6 th Respondent being the government agency responsible for collection and accounting of taxes is mandated by law to follow the Gazette Notice published on 28 th July 2025 and the Orders of the Court in Kerugoga HCCHRPET E009 of 2025: Farmers Party Vs. State Law Office .
x. Noting that the Gazette Notice is time-bound, any suspension is final in nature and may simply render the Gazette Notice nugatory.
xi. The Petitioner has failed to demonstrate the public interest being protected by the Petition and the Notice of Motion application.
xii. It is in public interest that the Court only acts when there is a demonstrable injury and not on apprehension.
xiii. The prayers sought are in a final nature and have the effect of making a determination on the Petition without the Respondents having an opportunity to place the documents and responses before the Court.
xiv. The application and Petition should be dismissed as the Petitioner have failed to demonstrate the prejudice they would suffer if the Orders are not granted.
Other Parties Case
29. The other Parties’ response to the Application is not in the Court File or Court Online Platform (CTS).
The Preliminary Objection
30. The 1 st , 3 rd , 4 th , 5 th and 7 th Respondents filed a Notice of Preliminary Objection dated 29 th October 2025, the subject of this ruling. They objected to the Petition on the basis that:
i. The Application and Petition violates the doctrine of exhaustion hence the Court lacks jurisdiction to hear and determine it.
ii. The matter is a procurement dispute falling under the dispute resolution mechanism of the Public Procurement Administrative Review Board under the Public Procurement Asset Disposal Act.
iii. The Application and Petition militates against the Ruling issued in Kerugoya HCCRPET E009/2025 on 19 th August 2025.
iv. The Application and Petition is a clear abuse of the Court process as there are ongoing suits in KERUGOYA HCCRPET E009/2025, MOMBASA HCCRPET E037/2025, KISUMU HCCRPET E029/2025, NAIROBI HCCRPET E1029/2025 and NAIROBI HCCRPET E650/2025 and clearly the instant Application and Petition is sub judice and should be struck out.
v. The Court should take notice of the numerous attempts in defeating public interest as upheld by Court in KERUGOYA HCCRPET E009/2025 by filing of multiple suits before different Courts hence amounting to abuse of the Court process in this Court.
vi. The Petitioner has not discharged the evidentiary burden required of them to demonstrate which right or duty is owed to it and the manner it has been violated by the Respondents.
vii. In sum, the instant Application and Petition is primarily hinged on suspending enforcement, implementation and operation of the impugned Gazette Notice No. 10353 dated 17 th July 2025, which in effect can only issue on appeal, which mechanism is not within the jurisdictional remit of this Court.
Submissions to the Application
31. The Parties submissions to the Petitioner’s Application are not in the Court file or Court Online Platform (CTS), save for the Petitioner and 1 st and 2 nd Respondent.
Submissions to the Preliminary Objection
1 st , 3 rd ,4 th ,5 th and 7 th Respondents’
32. Deputy Chief State Counsel, Kaumba S.O. filed submissions dated 6 th November 2025.
33. Counsel reiterating these Parties responses submitted that the instant suit relates to the integrity and legality of the procurement proceedings, a subject falling within the jurisdiction of the Public Procurement Administrative Review Board. Second, invokes the doctrine of sub judice in view of the ongoing suits and equally this suit militates against the Ruling issued in Kerugoya HCCRPET E009/2025 .
34. On the first point, Counsel submitted that the Petitioner seeks a conservatory order suspending the ongoing procurement process of importing grade 1 milled white rice, duty - free. Counsel submitted that this is provided for under Section 28(1)(a) of the Public Procurement and Asset Disposal Act wherein the Public Procurement Administrative Review Board is clothed with the jurisdiction of entertaining such disputes. This is as such argued to be offensive to the doctrine of exhaustion. Reliance was placed in Justus Kariuki Mate & another v. Martin Nyaga Wambora & another (2017) eKLR where it was held that:
“From the facts of this case, it is clear to us that the integrity of Court Orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of government responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practice from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case.”
35. Comparable reliance was placed in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR), United Bank of India vs Satyawati Tondon & Others; (2010) 8 SCC and R v National Environmental Management Authority, CA No 84 of 2010; [2011] eKLR .
36. On the second point, Counsel submitted that the issue of importation of rice as a result of the impugned Gazette Notice and the consequential procurement proceedings are the subject of the cited suits, earlier filed in public interest before other Courts. In light of this, Counsel stressed that the matter is sub judice and thus an abuse of the Court process. Reliance was placed in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR where it was held that:
“The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”
37. Further reliance was placed on Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR , and Gathariki v Cheko Plot Owners Association & another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) .
38. Lastly, Counsel submitted that this matter goes against the Ruling delivered in Kerugoya HCCRPET E009/2025 in that it allowed the impugned importation of rice. For this reason, Counsel stressed that a Court of concurrent jurisdiction cannot proceed to issue an order counteracting the issued order. Counsel reasoned that the essence of this Application is not available to this Court.
39. To buttress this point reliance was placed in Philip Kipchirchir Moi v the Hon. Attorney General & Another (Nairobi Petition No. 65 of 2012) [2013] eKLR where it was held that:
“I must begin by dispelling the fallacy that the Constitutional and Human Rights Division of the High Court in Nairobi has jurisdiction to superintend, supervise, direct, guide, shepherd and/or purport to mend the mistakes, real or perceived, of other Divisions of the High Court in Nairobi or elsewhere in Kenya. In spite of the continued and consistent stand of judges of that Division that it cannot have been the intention of the framers of the Constitution that such a position should exist, parties in every conceivable case, continue to invoke that fallacious and misguided jurisdiction.”
40. More was placed on Peter Ng’ang’a Muiruri v Credit Bank Ltd & 2 others (Nairobi Civil Appeal No. 203 of 2006); [2008] eKLR and Kenya Hotel Properties Limited v Attorney General & 5 others (Petition No. 16 of 2020); [2022] KESC 62 (KLR) .
The Petitioner
41. The Petitioner in response to both his Application and the Preliminary Objection filed submissions dated 12 th November 2025 through E.N. Namude Associates and Advocates. The issues underscored for discussion are: whether the notice of Preliminary Objection meets the required threshold in law and whether the Petitioner’s application for the grant of conservatory orders has merit .
42. On the first issue, Counsel submitted that the Petitioner’s case is that the impugned Gazette Notice which was made pursuant to Section 114 (2) of the East African Community Customs Management Act, as read with item 20 of Part B of the Fifth Schedule to the Act, is defective for it lacks a proper legal foundation. For this reason, its enforcement and implementation ought to be halted as any importation resulting from the notice will be a result of illegal procedure. Counsel emphasized that it is apparent in the circumstances of this case that the entire process, did not follow the proper procedure, resulting in a violation of constitutional provisions.
43. Counsel relying on Section 27 of the Public Procurement and Asset Disposal Act contended that since the Petitioner was not a participant in the procurement process the issues raised herein should be addressed by this Court not the Procurement Administrative Review Board as alleged. Counsel as well opposed the assertion that the matter in KERUGOYA HCCRPET E009/2025 is similar to this matter.
44. On the second issue, Counsel submitted that the conservatory orders are granted when there’s an issue involving public interest and that for the orders to be granted, the applicant must demonstrate a prima facie case with a likelihood of success and also demonstrate that the applicant’s case would be nugatory if the orders are not granted. Reliance was placed in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General, [2011] eKLR where it was held that:
“It is important to point out that the arguments that were advanced by counsel and that I will take into account in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the petitioner’s application and not the petition. I will not, therefore, delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires demonstrating that he has a prima facie case with a likelihood of success and that, unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution."
45. Additional reliance was placed in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) .
46. Counsel submitted that Petitioner’s case is that Articles 27, 35, and 46 of the Constitution were violated when the Government chose to import duty-free rice without a clear legal basis. It was argued that the entire process lacks transparency and accountability, aspects of which should be examined further at the hearing of the Petition.
The 2 nd Respondent
47. In response to both the Preliminary Objection and Application, the 2 nd Respondent through Theuri Wesonga and Company Advocates filed submissions dated 10 th November 2025. Counsel highlighted the key issues as: whether the Petition is sub judice, whether the institution of the present Petition amounts to an abuse of the court process and whether the preliminary objection and conservatory order meets the threshold .
48. On the first issue, Counsel relying in Section 6 of the Civil Procedure Act submitted that this suit offends the doctrine of sub judice owing to the earlier pending suits revolving around the same matter. Counsel stressed that sub judice is a jurisdictional bar that can be raised as a preliminary objection as held in Republic v Paul Kihara Kariuki, Attorney General & 2 others ex parte Law Society of Kenya [2020] eKLR .
49. Comparable reliance was also placed in Thiba Min. Hydro Co. Ltd (supra) and Kenya National Commission on Human Rights (supra).
50. On the second issue, Counsel submitted that in light of the existence of the doctrine of sub judice and Petitioner’s awareness of the multiple suits in this matter, this suit is an abuse of the Court process. Reliance was placed in Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 where it was held that:
“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”
51. Further reliance was placed on Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR) , Daniel Mugendi v Kenyatta University & 3 Others [2013] eKLR and Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR .
52. Counsel in addition underscored that this matter is in direct conflict with the Ruling in Kerugoya HCCRPET E009 of 2025 , which authorized the importation of rice in question. Counsel emphasized that a Court of concurrent jurisdiction lacks the mandate to sit in appeal, review, or otherwise re-open the findings of another Court. As such, this clearly affirms that a Court of the same level, or any other Court, cannot purport to review or vary an order already made by a competent Court in a separate proceeding as held in Manchester Outfitters Limited & 2 Others v Galot Holdings Limited & 3 Others [2025] KEELC 6626 (KLR) .
53. On the final issue, Counsel submitted that the Petition revolves around Tender No. KNTC/TENDER/IMPORT/003/2025-2026 which was issued by the 3 rd Respondent. Counsel submitted that this dispute relates to the Public Procurement and Asset Disposal Act, 2020 as deals with the integrity and legality of ongoing procurement proceedings.
54. Counsel highlighted that this jurisdiction is vested in the Public Procurement Administrative Review Board under Section 28(1) (a) of the Public Procurement and Asset Disposal Act. Considering this, Counsel stressed that the Petitioner was required to exhaust this mechanism before approaching this Court under the doctrine of exhaustion. Counsel equally relied in Justus Kariuki Mate & another (supra) to buttress this point.
55. Equally reliance was placed in Speaker of National Assembly v Karume [1992] KLR 21, United Bank of India Vs. Satyawati Tondon & others;(2010) 8 SCC and R v National Environmental Management Authority, CA No. 84 of 2010; (2011) eKLR .
ANALYSIS AND DETERMINATION
56. It is my considered opinion that the issues that arises for determination are:
i. Whether the 7 th Respondent’s Preliminary Objection is merited.
ii. Whether the Petitioner’s Application for conservatory orders should be allowed.
Whether the 7 th Respondent’s Preliminary Objection is merited.
57. The threshold of a Preliminary Objection was summarized in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) EA 696 page 700 when the Court observed as follows: -
'So far as I am aware, a preliminary objection consists of a pure 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. Examples are an objection to the jurisdiction of the court, or 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.
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…”
58. Likewise, the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR) observed as follows:
“…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. The facts are deemed agreed, as they are prima facie presented in the ple
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