https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12101

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NO. E161 OF 2025 KENYA WILDLIFE SERVICE........…………….......................APPELLANT -VERSUS- MARIETA NTHENYA MUSYOKA & BERNADATTE KALUKI MUSYOKA (Suing as Legal Representatives of the Estate of MUSYOKA MUTAVA-Deceased).…......…. RESPONDENTS **RULING** 1. This ruling is on the Preliminary Objection dated 21st July 2025 raised by the Respondents herein. The Preliminary Objection is said to be on a point of law to the Applicant’s Notice of Motion dated 9th July 2025 herein on the following grounds that: 2. *The Appeal is incompetent and should be struck out because the same has been filed out of time without leave of Court.* 3. *That the Appellant’s Notice of Motion anchored on an incompetent Appeal is* *incompetent too and the same should be struck out.* 4. The Court gave directions for the preliminary objection to be canvassed by way of written submissions and both parties complied by filing and exchanging their respective submissions. 5. This Court has considered the application, Replying Affidavit the Preliminary Objection and the respective submissions filed by the Counsel for the parties. I will proceed to determine whether the preliminary objection is sustainable. 6. The law on preliminary objections is well settled. In the famous case of **Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696** sets out what constitutes a preliminary objection. The court observed thus:- ***“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”.*** 1. Sir Charles Newbold P. stated:- ***“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 preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.*** 1. Similarly, the Supreme Court in the case of [**Hassan Ali Joho & Another v Suleiman Said Shabal & 2 others**](http://kenyalaw.org/caselaw/cases/view/93989/) **SCK Petition No. 10 of 2013 [2014] eKLR** held that:- ***“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”.*** 1. Further in the case of [**Hassan Nyanje Charo v Khatib Mwashetani & 3 Others**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2014/5)**, [2014] eKLR** the court held that:- ***“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. The facts are deemed agreed, as they are prima facie presented in the pleadings on record”.*** 1. A preliminary objection cannot be raised if any fact has to be ascertained from elsewhere or **if the court is called upon to exercise judicial discretion**. The Court will also take into account that the preliminary objection must stem from the pleadings and raises pure point of law, and should not deal with disputed facts nor should it derive its foundation from factual information. See the case of**Oraro- Vs-Mbaja(2005) 1KLR 141,** where it was held that**:-** ***“Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.*** 1. Evidently, a preliminary objection must be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with the point of law. 2. The Applicant’s instant application apart from seeking stay of execution of the judgement in Kithimani CMCC No. E187 OF 2023 it also seeks leave of this court to file Appeal out of time. The Applicant in grounds (d) and (e) of the application states that their registry had been overwhelmed therefore anything served, fell through the cracks and that the delay in filing the appeal is explainable and by sheer inadvertence. 3. From this court’s point of view, the Applicant in arguing its application will be at task to explain the delay in filing the Appeal within the stipulated period and this might call for the Applicant having to tender evidence to support any fact (s) it may raise in that regard. Such matters of fact are outside the ambit of a preliminary objection. The said matters of fact have to be ascertained through evidence. For instance, the reasons for the delay in filing the appeal herein are in themselves matters of fact that call for proof through adduction of evidence. This Court will require proof by evidence to ascertain whether or not to exercise judicial discretion in granting the Applicant leave to appeal out of time. 4. The Respondent’s preliminary objection seeks to circumvent the pending Application before allowing this court to determine whether or not leave ought to be granted to the Applicant to file an Appeal out of time and can only be termed to be premature. 5. Since a preliminary objection cannot be raised on disputed facts and the prayer for leave to file appeal out of time raised by the Applicant will require the probing of evidence, the Court finds and holds that what has been raised by the Respondents does not amount to a preliminary objection. 6. This court will have to ascertain the facts as pleaded by the Applicant and those to be raised by the Respondent if any by also probing the documents filed in the matter. In doing so, the Court will be probing evidence. 7. Accordingly, this Court finds that the preliminary objection dated 21st July 2025 is without merit and the same is overruled. Each Party to bear own costs of the preliminary objection. 8. Directions to be taken on the disposal of the Applicant’s Notice of Motion application dated 9th July 2025. It is hereby so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 22ND JULY 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND JULY 2026