By a notice of preliminary objection dated 15.7.2024, the respondent raised a preliminary objection to the appellant’s petition of appeal filed on the 9.7.2024, on the following grounds:
i) That there is lack of appealable decision
ii) That there are no substantial grounds of appeal
iii) That the appeal is frivolous with procedural errors
iv) That the appeal is an abuse of court process
v) That there is non-disclosure of material facts
The respondent also filed what is titled as a replying affidavit sworn on the 15.7.2024. In the replying affidavit which apparently was in support of the preliminary objection, the respondent deposed that he was running a business in the appellant’s premises from 1.10.22 until mid-December 2022 when the appellants unlawfully and without notice locked the shop due to delayed rent payment for the month of December 2022.
That the shop was opened by the respondent in mid-April 2023 and he found out that his stock had been confiscated. He filed a case against the appellants at the Business Premises Rent Tribunal and judgment was delivered in his favour. In the judgment the appellants were ordered to pay the respondent Kshs. 1,410,250 being the cost of the confiscated stock together with Kshs. 100,000 being costs. The appeal herein challenges the tribunal’s finding.
The respondent deposed that he has suffered and continues to suffer financially due to what he calls a frivolous appeal. The affidavit was in support of the preliminary objection. The parties filed submissions on the preliminary objection.
RESPONDENT’S SUBMISSIONS
The respondent in his submission highlighted the facts giving rise to the case as briefly stated in his affidavit whose contents I have summarized above. In the submissions, the respondents appear to canvass the appeal on merit yet the issue before court was his preliminary objection. The respondent further submitted on whether he should be paid interest on the decretal sum from the date of judgment till payment in full.
APPELLANTS’ SUBMISSIONS
The appellants in their submissions asserted that the preliminary objection dated 15.7.24 failed to meet the test of what should constitute a preliminary objection. The appellants’ submission was that the preliminary objection failed the test laid out in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. The appellant submitted that the appeal having been filed in time as required, they ought to be allowed to canvass the same on merit.
ANALYSIS AND DETERMINATION
The only issue that the court ought to determine at this stage is whether the preliminary objection raised by the respondent can be sustained.
It is trite law that a preliminary objection should be based on pure points of law which do not require copious probing of evidence in order to ascertain. The locus classicus on this issue is the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where Law J.A., (as he then was) stated:
“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 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.”
Similarly , Sir Charles Newbold , in the same case stated that:
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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. The improper raising of points of law by preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This practice should stop.”
From the foregoing, there is no doubt that any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not a true preliminary objection.
The objections raised by the respondent on the appeal are entangled with factual details of the case before the tribunal and the appeal itself. It does not help that the respondent filed an affidavit to buttress his preliminary objection. Most of the issues raised in what he calls a preliminary objection are the questions which the court seized of the appeal ought to consider. While noting that this is a first appeal, the judge handling the appeal will proceed by way of a retrial, that is, by reevaluating and reanalyzing the evidence adduced before the tribunal to enable the court come to its own conclusion. Of course, the appellate court will give an allowance to the fact that it neither heard nor saw the witnesses.
The issues raised by the respondent will call for a careful examination and analysis of the facts and the evidence which were before the tribunal. The appellant has contested the issues and the court will need to evaluate the evidence of both parties.
The upshot of the foregoing is that the preliminary objection dated 15.7.2024 is misconceived and lacks merit. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED THIS 20 th JULY 2026
D.O. ONYANGO
JUDGE
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i) That there is lack of appealable decision
ii) That there are no substantial grounds of appeal
iii) That the appeal is frivolous with procedural errors
iv) That the appeal is an abuse of court process
v) That there is non-disclosure of material facts
The respondent also filed what is titled as a replying affidavit sworn on the 15.7.2024. In the replying affidavit which apparently was in support of the preliminary objection, the respondent deposed that he was running a business in the appellant’s premises from 1.10.22 until mid-December 2022 when the appellants unlawfully and without notice locked the shop due to delayed rent payment for the month of December 2022.
That the shop was opened by the respondent in mid-April 2023 and he found out that his stock had been confiscated. He filed a case against the appellants at the Business Premises Rent Tribunal and judgment was delivered in his favour. In the judgment the appellants were ordered to pay the respondent Kshs. 1,410,250 being the cost of the confiscated stock together with Kshs. 100,000 being costs. The appeal herein challenges the tribunal’s finding.
The respondent deposed that he has suffered and continues to suffer financially due to what he calls a frivolous appeal. The affidavit was in support of the preliminary objection. The parties filed submissions on the preliminary objection.
RESPONDENT’S SUBMISSIONS
The respondent in his submission highlighted the facts giving rise to the case as briefly stated in his affidavit whose contents I have summarized above. In the submissions, the respondents appear to canvass the appeal on merit yet the issue before court was his preliminary objection. The respondent further submitted on whether he should be paid interest on the decretal sum from the date of judgment till payment in full.
APPELLANTS’ SUBMISSIONS
The appellants in their submissions asserted that the preliminary objection dated 15.7.24 failed to meet the test of what should constitute a preliminary objection. The appellants’ submission was that the preliminary objection failed the test laid out in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. The appellant submitted that the appeal having been filed in time as required, they ought to be allowed to canvass the same on merit.
ANALYSIS AND DETERMINATION
The only issue that the court ought to determine at this stage is whether the preliminary objection raised by the respondent can be sustained.
It is trite law that a preliminary objection should be based on pure points of law which do not require copious probing of evidence in order to ascertain. The locus classicus on this issue is the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where Law J.A., (as he then was) stated:
“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 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.”
Similarly , Sir Charles Newbold , in the same case stated that:
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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. The improper raising of points of law by preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This practice should stop.”
From the foregoing, there is no doubt that any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not a true preliminary objection.
The objections raised by the respondent on the appeal are entangled with factual details of the case before the tribunal and the appeal itself. It does not help that the respondent filed an affidavit to buttress his preliminary objection. Most of the issues raised in what he calls a preliminary objection are the questions which the court seized of the appeal ought to consider. While noting that this is a first appeal, the judge handling the appeal will proceed by way of a retrial, that is, by reevaluating and reanalyzing the evidence adduced before the tribunal to enable the court come to its own conclusion. Of course, the appellate court will give an allowance to the fact that it neither heard nor saw the witnesses.
The issues raised by the respondent will call for a careful examination and analysis of the facts and the evidence which were before the tribunal. The appellant has contested the issues and the court will need to evaluate the evidence of both parties.
The upshot of the foregoing is that the preliminary objection dated 15.7.2024 is misconceived and lacks merit. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED THIS 20 th JULY 2026
D.O. ONYANGO
JUDGE
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