WILLIAM KIPRONO TOWETT & 1597 OTHERS V. FARMLAND AVIATION LTD, MARCO DUNN & TOBY DUNN

JUDGMENT OF THE COURT

At the heart of this appeal is the vexed question of “preliminary objections” as we know them. Newbold, J.A. (as he then was) gave the legal fraternity the most commonly cited definition of a preliminary objection when he famously surmised as follows in MUKISA BISCUIT CO LTD v. WEST END DISTRIBUTORS LTD [ 1969] E.A. 696:-

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law (emphasis ours) 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 (emphasis ours) or if what is sought is the exercise of judicial discretion”. (Emphasis ours)

He went on to state perspicuously that;

“The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues”.

Such was the eminence of a preliminary objection at the time, a position which still prevails to date owing to…