Interactive Gaming & Lotteries Limited v Ngatia & Associates Advocates (Civil Appeal 309 of 2019) [2025] KECA 1759 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a preliminary objection raising disputed facts should be dismissed, not necessarily struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's preliminary objection was competent, given that it raised contested factual issues
- 2.Whether the appropriate order upon a finding that a preliminary objection raises contested facts is striking out rather than dismissal
- 3.Whether the trial court determined the issue of retainer without evidence
Key legal issues
#Whether a preliminary objection found to raise contested facts must be struck out rather than dismissed
No. Dismissal is a proper response because such a finding goes to the merit of the objection; striking out remains available where the objection is frivolous or improperly raised, and the court may also postpone the objection to be heard with the main suit.
The court gave three reasons: a finding that an objection raises contested facts is a decision on its merit, making dismissal a common and lawful response; striking out remains an option for objections that are frivolous or improperly before the court; and where an objection mixes law and contested facts, the court may exercise discretion to defer it to the full hearing. A failed objection's issues can still be addressed in the main suit, distinguishing Ngoni-Matengo, which concerned the competence of an entire appeal.
Whether the trial court determined the contested issue of retainer without evidence
No. The trial judge made no finding or determination on any contested issue; she merely pointed out the legal consequences of raising a preliminary objection, and correctly held the objection unmerited for failing the pure-point-of-law threshold.
Both parties agreed the issue of retainer was contested. The court found the trial judge did not determine the retainer on its merits; her comments on retainer were directed to the implications of the law on preliminary objections, namely that a preliminary objection assumes the advocate's pleaded facts (including instructions) are correct. On that assumption the advocate had a basis for taxing the bill, so the objection necessarily failed without any evidential determination of retainer.
Legal principles established
#- A preliminary objection may only be raised on a pure point of law, on the assumption that all facts pleaded by the other side are correct; it cannot be raised where any fact has to be ascertained or where judicial discretion is sought
- A decision on a preliminary objection that raises contested facts is a decision on the merit of that objection, making dismissal a proper and lawful response; striking out is not the only or mandatory course
- Where a preliminary objection raises a mixed bag of law and contested facts, the court has a discretion to postpone its determination and hear it alongside the main suit
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Commercial and Tax Division
- Commercial Misc. Application No. 15 of 2016
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (appellant exercised its right of appeal against the ruling of the High Court)
Relief refused
#Setting aside the ruling of 29th November 2018 and substituting an order allowing the appellant's preliminary objection dated 20th April 2016
The court found the trial judge made no determination on any contested issue and correctly concluded the preliminary objection was unmerited for raising contested facts
In the alternative, substitution of the dismissal of the preliminary objection with an order striking it out
The court held there is no hard and fast rule that a preliminary objection raising contested facts must be struck out rather than dismissed
Costs
The appeal is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We consequently find this appeal not to have any merit for the foregoing reasons. The appeal is accordingly dismissed with costs to the respondent.
we are not persuaded that there is a hard and fast rule that once such a finding is made, then it necessarily follows that the preliminary objection should be struck out, as opposed to being dismissed
a decision as regards a preliminary objection raising contested facts is a decision that touches on the merit of that preliminary objection, thus making it liable to dismissal, which is a common response for the court
a court has the discretion, and should be at liberty to postpone the determination of the preliminary objection and reserve the objections to be heard alongside the main suit
If a preliminary objection is found not to have merit, the court will proceed with the hearing of the main suit, and the issues raised in the failed objection can still be addressed as part of the overall arguments in the case
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maringi (Suing for and on behalf of the Estate of Katana Malingi Mwagona) v Gande & 3 others (Environment and Land Case E001 of 2025) [2025] KEELC 8183 (KLR)[2025] KEELC 8183 (KLR)25 Nov 2025applied
Cite this brief
#Cite this brief
Caselaw, "Interactive Gaming & Lotteries Limited v Ngatia & Associates Advocates (Civil Appeal 309 of 2019) [2025] KECA 1759 (KLR)", Case Analysis (2025). Commercial Appeal arising from Commercial Misc. Application No. 15 of 2016 (High Court, Commercial and Tax Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1759/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.