1. The notice of notion dated 13.2.25 came up for hearing on 25.2.25 When Miss Bosire for the respondent indicated that they had filed a notice of preliminary objection dated 21.2.25 on the jurisdiction of the court . She sought that the same be heard first. Mr Wesonga for the applicant submitted that the preliminary objection is not pegged on pleadings as required by law . Miss Bosire submitted that the court lack jurisdiction to hear the matter.
Determination
2. I have considered the objection raised by Mr Wesonga and the reply. The locus classicus on the definition of preliminary objections is the case the Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696: where it was held ‘‘ 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 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.
3. In the case of AVTAR SINGH BHAMRA & ANOTHER –VS- ORIENTAL COMMERCIAL BANK – Civil Suit No. 53 of 2004, the High Court sitting at Kisumu held that “a Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”.
3. It is clear from the foregoing that a preliminary objection must be based on pleadings filed by parties and pure points of law . in the instant case defence has not yet been filed . I find that the preliminary objection is premature and I proceed to strike it out with costs to the applicant.
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF
CA OIGO
MR WESONGA FOR THE APPLICANT
MISS BOSIRE FOR RESPONDENT