1. The applicant filed a Notice of Motion dated 29th April 2025, by which he sought, inter alia, to restrain the court below from delivering a ruling scheduled for 15th May 2025 in Mombasa CMCC No.3388 of 2007. The basis of the application was the contention that the Chief Magistrate’s court lacked jurisdiction to issue orders affecting the estates of deceased persons under the Law of Succession Act. The deceased person whose estate is the subject of proceedings in the court below is Tabu Abdul Bezhuha (deceased). The applicant is the administrator of the said estate.
2. The Respondent, Mr Randolph M. Tindika, who is an advocate, filed a Notice of Preliminary Objection dated 5th May 2025, seeking to have, as is slated in paragraph 10 of the Notice of Preliminary Objection, this court “down its tools forthwith!”
3. What amounts to a proper preliminary objection was settled in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696. In the said case, the court held that:
“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implications 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 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.”
4. I have considered the preliminary objection raised by the Respondent. In my view, it requires the ascertainment of facts that are in dispute. Accordingly, I am not able to agree with the Respondent that the preliminary objection ought to be upheld. The preliminary objection is thus dismissed.
5. The matter shall be mentioned before Visram J. on 17th June 2026 for directions on the hearing and determination of the Notice of Motion application dated 29th April 2025.
6. Each party shall bear his own costs.
7. It is so ordered.
Dated, Signed and Delivered at Nairobi on this 12th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. The Respondent, Mr Randolph M. Tindika, who is an advocate, filed a Notice of Preliminary Objection dated 5th May 2025, seeking to have, as is slated in paragraph 10 of the Notice of Preliminary Objection, this court “down its tools forthwith!”
3. What amounts to a proper preliminary objection was settled in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696. In the said case, the court held that:
“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implications 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 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.”
4. I have considered the preliminary objection raised by the Respondent. In my view, it requires the ascertainment of facts that are in dispute. Accordingly, I am not able to agree with the Respondent that the preliminary objection ought to be upheld. The preliminary objection is thus dismissed.
5. The matter shall be mentioned before Visram J. on 17th June 2026 for directions on the hearing and determination of the Notice of Motion application dated 29th April 2025.
6. Each party shall bear his own costs.
7. It is so ordered.
Dated, Signed and Delivered at Nairobi on this 12th day of May 2026. Delivered virtually through Microsoft TEAMS.