https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12666

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **CIVIL DIVISION** **CIVIL APPEAL NO. E038 OF 2025** **TAFLE SAID HEMED APPELLANT** **VERSUS** **AMER SHABAN ABED RESPONDENT** *(Being an appeal from the judgment of Hon. Gatambia Samuel Ndungu, Adjudicator, in Mombasa SCCCOMM No. E1209 of 2024, delivered on 30th January 2025, between Amer Shaban Abed v Tafle Said Hemed)* **R U L I N G** **Introduction** 1. Before me for determination is the respondent’s Notice of Preliminary Objection dated 17th March 2025, by which the respondent, Amer Shaban Abed, prays that the appellant’s entire cause, being the Memorandum of Appeal dated 17th February 2025 together with the Notice of Motion of even date, be struck out or dismissed with costs. 2. The appeal arises from the judgment of the Small Claims Court (Hon. Gatambia Samuel Ndungu, Adjudicator) delivered on 30th January 2025 in Mombasa SCCCOMM No. E1209 of 2024, by which the adjudicator entered judgment in favour of the respondent (the claimant below) in the sum of Kshs. 174,390/=, and dismissed the appellant’s preliminary objection which had challenged the jurisdiction of the Small Claims Court to entertain a claim said to be criminal in nature. 3. The preliminary objection was canvassed by way of written submissions. The respondent filed submissions dated 25th August 2025 and the appellant filed skeleton submissions dated 4th June 2025, together with a list and bundle of authorities. I have considered the Notice of Preliminary Objection, the pleadings on record, and the rival submissions and authorities. **The Preliminary Objection** 4. The Notice of Preliminary Objection, expressed to be brought under Order 51 Rule 14 of the Civil Procedure Rules, raises seven grounds. In substance, the respondent contends: that the primary suit was heard and determined on the merits, after both parties gave sworn testimony and produced documentary evidence; that the appellant’s Memorandum of Appeal and Notice of Motion seek to direct this court to facts and documents that were not placed before the trial court; that the introduction of new evidence on appeal offends Order 42 Rule 27(1) of the Civil Procedure Rules; that the appellant’s allegation that her SIM card was hacked, and her allegation that she was found to have no case to answer in a criminal matter, were not supported by any evidence produced before the trial court; that to entertain the appeal would enable an unsuccessful party to patch up the weak points in her case and make a fresh case on appeal; and that the appeal and the Notice of Motion are therefore incompetent, incurably defective and an abuse of the court process, and ought to be struck out with costs. 5. The single thread running through all seven grounds is the contention that the appellant is impermissibly introducing, on appeal, evidence and factual assertions that were not before the Small Claims Court, contrary to the bar in Order 42 Rule 27(1) of the Civil Procedure Rules. **The respondent’s submissions** 6. The respondent submits that the objection raises a pure point of law capable of disposing of the appeal, namely the bar against the introduction of additional evidence at the appellate stage save in the limited circumstances provided under Order 42 Rule 27. Relying on *Musyoki v Jiwani Impex Ltd* (Civil Appeal E135 of 2021) [2023] KEHC 21074 (KLR), which in turn draws on the classic statement in *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696, the respondent contends that no factual inquiry is required to determine whether the appellant’s conduct offends the rule. 7. The respondent further relies on *Haji v Mohamed* (Civil Appeal E057 of 2024) [2025] KEHC 4016 (KLR) for the proposition that a party may not adduce additional evidence on appeal without leave, and on *Njoroge v Mwaura t/a Kenline Consultants & another* (Civil Appeal E204 of 2023) [2025] KEHC 4969 (KLR) for the proposition that permitting a party to reconstruct her case on appeal undermines the finality of the trial process. On that footing, the respondent prays that the Memorandum of Appeal and Notice of Motion be struck out with costs. **The appellant’s submissions** 8. The appellant opposes the objection. She submits that the objection does not raise any pure point of law but instead turns on contested questions of fact, and is therefore not a proper preliminary objection within the meaning of *Mukisa Biscuit*. She contends that the material concerning the alleged hacking of her SIM card and the diversion of the funds to Airtel line +254106002422 was in fact placed before the trial court, and appears in the Record of Appeal at pages 22, 23, 26, 27, 29, 30 and 33; and that she is accordingly not introducing new evidence at all. She relies, among others, on *Unga Limited v Magina Limited* [2014] eKLR and *Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & Another* [2015] eKLR to urge that a preliminary objection improperly laden with points of fact ought to be dismissed. 9. On the merits of the intended appeal, which for present purposes are not before me, the appellant maintains that the Small Claims Court lacked jurisdiction to entertain what was in substance a claim of theft, a matter criminal in nature requiring strict proof, and that the adjudicator wrongly treated her defence as a mere denial when it raised bona fide triable issues, including the need to join third parties. **Issue for Determination** 10. The narrow question I must decide is whether the respondent’s Notice of Preliminary Objection dated 17th March 2025 is a proper preliminary objection; that is, whether it raises a pure point of law capable, on the facts as pleaded, of disposing of the appeal, or whether it is instead an objection that depends on the ascertainment of disputed facts and therefore cannot be sustained as a preliminary objection. **Analysis and Determination** 11. The law governing preliminary objections is settled and was correctly identified by both parties. The locus classicus is *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696. At page 700, Law JA described a preliminary objection in these terms: *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.* 12. At page 701, Sir Charles Newbold P. added the qualification that has become the touchstone for the disposal of objections such as the present one: *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.* 13. Two consequences flow from that authority, both fatal to the present objection. First, a preliminary objection must be argued on the assumption that the facts pleaded by the opposite party are correct. Secondly, it cannot be entertained where any fact has to be ascertained. An objection that requires the court to weigh competing factual assertions, or to look beyond the pleadings and interrogate the evidentiary record, is not a preliminary objection at all; it is a matter for the hearing. 14. Measured against that standard, the respondent’s objection cannot stand. Its entire premise is a disputed question of fact: whether the appellant is, or is not, introducing on appeal evidence that was not before the trial court. The respondent asserts that she is; the appellant asserts, expressly and with page references to the Record of Appeal, that the impugned material was placed before the adjudicator and forms part of the trial record. That is a live factual controversy. It cannot be resolved on the assumption that the respondent’s version is correct, for to assume the respondent’s version is correct would be to decide the very question in issue. It can be resolved only by an examination of the certified proceedings of the Small Claims Court and a comparison of those proceedings with the Record of Appeal. That is precisely the kind of factual ascertainment that *Mukisa Biscuit* forbids at the preliminary-objection stage. 15. The point is placed beyond argument by the very terms of the Notice of Preliminary Objection. Grounds 4 and 5 do not assert a proposition of law; they assert facts. Ground 4 states that “No evidence was produced to support this allegation” and that “The appellant’s assertion before the lower court was that their line was blocked and only visited the Safaricom offices to renew the line.” Ground 5 states that “The appellant did not produce any evidence in the lower court to support this allegation.” Each of these is a contested assertion about what did and did not happen at the trial. To uphold the objection, I would have to make findings of fact on those very matters, findings I could make only after examining the record. An objection that can be sustained only by first making contested findings of fact is, by definition, not a pure point of law. 16. There is a more fundamental difficulty with the objection. It proceeds on the premise that a Memorandum of Appeal “introduces evidence.” It does not. A memorandum of appeal is a pleading; it sets out the grounds on which the decision below is impugned. It does not tender evidence. Nor, properly understood, does a record of appeal “introduce” evidence: it reproduces the record of the proceedings in the court below so that the appellate court may re-evaluate what was before the trial court. Whether the record of appeal in this case accurately reproduces the trial record, or whether it has been padded with material that was never before the adjudicator, is, once again, a question that can be answered only by scrutinising the certified proceedings. It is not a question of law that can be resolved on the face of the pleadings. 17. The authorities on which the respondent relies do not assist the objection; if anything, they underscore why it is misconceived. In *Haji v Mohamed* (supra), the court did not strike out an appeal on a preliminary objection. The relief was granted on a *notice of motion* dated 6th November 2024 seeking to expunge specified items from the record of appeal, and the court reached its conclusion only after considering the application, the response and the submissions, and satisfying itself that “the impugned documents were not produced in the court below.” That is the correct procedural route where a respondent contends that particular documents in a record of appeal were not before the trial court: an application to expunge, determined on evidence, not a preliminary objection that assumes the answer. Similarly, *Njoroge v Mwaura* (supra) was a ruling on an application *for leave to adduce additional evidence* under Section 78(1)(d) of the Civil Procedure Act; the court weighed the three-fold test in *Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & 3 Others* [2018] eKLR on the facts before it. Both decisions were reached after a factual inquiry that a preliminary objection does not permit. 18. Order 42 Rule 27 of the Civil Procedure Rules is, in truth, not engaged at this stage at all. That rule governs applications to adduce additional evidence on appeal; it is directed at a party who seeks the court’s leave to place fresh material on the record. No such application is before me. The appellant has not applied to adduce additional evidence; on the contrary, she maintains that the material in question was already before the trial court. The respondent cannot invoke a rule about applications for leave in order to strike out an appeal in which no such application has been made. If, when this appeal is heard, it emerges that the Record of Appeal contains material that was not before the adjudicator, the appropriate course will be to disregard or expunge that material, if necessary on a properly constituted application, not to strike out the appeal in limine. 19. I would add this. The remedy the respondent seeks, the striking out of the entire appeal, is a drastic one that drives a litigant from the seat of judgment, and it is granted sparingly and only in the plainest of cases: see *D.T. Dobie & Company (Kenya) Ltd v Muchina* [1982] KLR 1. It is wholly disproportionate to a complaint that a handful of pages in a record of appeal may not have been before the trial court. Even if the respondent were correct that certain pages ought not to be in the record, a matter on which I make no finding, that would at most warrant the excision of those pages, not the extinction of the appellant’s right of appeal on grounds that are otherwise properly pleaded and squarely raise a question of jurisdiction. 20. For completeness, I say nothing about the merits of the intended appeal, whether the Small Claims Court had jurisdiction over the claim, whether the claim was criminal in nature, or whether the appellant’s defence raised triable issues. Those are questions for the hearing of the appeal. They are not before me on this objection, and it would be improper to express any view upon them at this stage. 21. In the result, the respondent’s objection does not raise a pure point of law. It rests on contested assertions of fact that can be resolved only by examining the record of the proceedings below. It is therefore not a preliminary objection within the meaning of the threshold set out in the *Mukisa Biscuit case (supra)*, and it must fail. **Disposition** 22. Accordingly, I make the following orders: (a) The respondent’s Notice of Preliminary Objection dated 17th March 2025 is overruled and is hereby dismissed. (b) The appeal shall proceed to hearing and determination on its merits, and shall be listed for directions accordingly. (c) The costs of the preliminary objection shall be costs in the appeal. 23. Orders accordingly. **Signed dated and published on 6 August 2026** Ngaah Jairus **JUDGE**