[2025] KEHC 1283 (KLR)
The court found that a preliminary objection must be based on pleadings and pure points of law. Since no defence had been filed in the present case, there were no pleadings from which the preliminary objection could arise. The objection was therefore premature and could not be entertained at this stage. The court...
Source-derived case information.
- Citation
- [2025] KEHC 1283 (KLR)
- Parties
- Plaintiff: Kennedy Sagini; Plaintiff: Samwel Mishael Okemwa; Plaintiff: Antony Monda; Plaintiff: Henry Oriansa; Plaintiff: Job Bwana Maisiba; Defendant: Kenya Rural Roads Authority; Defendant: Director General Kenya Rural Roads Authority; Defendant: Deputy Director Kenya Rural Roads Authority Kisii Region
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case E002 of 2025
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection struck out as premature
- Judges
- TA Odera
- Legal Topics
- Preliminary Objection, Jurisdiction, Pleadings Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Sagini
Plaintiff
Samwel Mishael Okemwa
Plaintiff
Antony Monda
Plaintiff
Henry Oriansa
Plaintiff
Job Bwana Maisiba
Plaintiff
Kenya Rural Roads Authority
Defendant
Director General Kenya Rural Roads Authority
Defendant
Deputy Director Kenya Rural Roads Authority Kisii Region
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondent is properly before the court in the absence of pleadings.
- 2 Whether a preliminary objection on jurisdiction can be entertained before the defence is filed.
Ratio Decidendi
The court found that a preliminary objection must be based on pleadings and pure points of law. Since no defence had been filed in the present case, there were no pleadings from which the preliminary objection could arise. The objection was therefore premature and could not be entertained at this stage. The court struck out the preliminary objection with costs to the applicant, affirming that preliminary objections must strictly comply with the requirements set out in Mukisa Biscuit and subsequent authorities.
Court Disposition
preliminary objection struck out as premature
Orders
- The preliminary objection dated 21.2.25 is struck out with costs to the applicant.
- The respondent to file and serve a reply by close of business on 28.2.25.
Full Case Text
Judgment text and source record
31 paragraphs
Sagini & 4 others v Kenya Rural Roads Authority & 2 others (Civil Case E002 of 2025) [2025] KEHC 1283 (KLR) (26 February 2025) (Ruling)
Neutral citation: [2025] KEHC 1283 (KLR)
Republic of Kenya
In the High Court at Kisii
Civil Case E002 of 2025
TA Odera, J
February 26, 2025
Between
Kennedy Sagini
1st Plaintiff
Samwel Mishael Okemwa
2nd Plaintiff
Antony Monda
3rd Plaintiff
Henry Oriansa
4th Plaintiff
Job Bwana Maisiba
5th Plaintiff
and
Kenya Rural Roads Authority
1st Defendant
Director General Kenya Rural Roads Authority
2nd Defendant
Deputy Director Kenya Rural Roads Authority Kisii Region
3rd Defendant
Ruling
1. The notice of motion 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 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.
T.A ODERAJUDGEDelivered virtually via Teams Platform in the presence of:Court Assistant - OigoMr. Wesonga for the ApplicantMiss Bosire for RespondentT.A ODERAJUDGEMiss Bosire: We seek that we be given time to file reply.Wesonga: They have sufficient time to file a response.Bosire: We seek time as the documents to be annexed to the replying affidavit are very bulky, we can take a ruling date in the meantime.Court: I have heard both parties. Reply be filed and served by close of business on 28. 2.25. The applicant is at liberty to file a further affidavit by close of business on 3. 3.25. I proceed to set it for ruling on 5. 3.25. I am not inclined to grant interim orders this stage.T.A ODERAJUDGE