Mara North Holdings Limited v Sananka (Land Case E021 of 2025) [2026] KEELC 387 (KLR)

submitted that the Preliminary Objection herein is legally and procedurally untenable, fails to meet the threshold of a proper preliminary objection, and is merely an attempt to derail the proceedings. 5. The Plaintifi raised the following issues for determination; i. Whether the issue raised in the Preliminary Objection are pure points of law. ii. Whether the Preliminary Objection can be determined without reference to disputed facts. iii. Whether any facts will need to be proven through evidence. iv. Whether the preliminary objection, if successful, can dispose of the entire suit. v. When is an advocate disqualified from acting for a party in a case? vi. Whether dispute resolution clause in contracts precludes parties from seeking injunctive reliefs in courts. 6. The Plaintifi argued that the issues raised in the Preliminary Objection are not pure points of law, and cannot be determined without reference to disputed facts. Citing Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Plaintifi emphasized that a proper Preliminary Objection must consist of a point of law that is discernible without reference to disputed facts or the need for evidentiary interrogation. Furthermore, the Plaintifi referred to the case of Oraro v Mbaja [2005] eKLR, which held that objections entangled with factual disputes must be struck out or deferred to a full hearing. 7. The Plaintifi also contended that even if the preliminary objection were to succeed, it would not dispose of the entire suit, but would only lead to the disqualification or recusal of counsel. The Plaintifi argued that striking out the entire suit due to a claim of confiict of interest would be draconian and violate the Plaintifi's constitutional right to a fair hearing under Article 50 of the Constitution. Accordingly, the Plaintifi concluded that the preliminary objection is speculative, procedurally defective and incapable and should be dismissed. 8. Reliance was sought in the cases of Sunrise Properties Ltd vs Industrial Credit Bank, Davidson Mwangi Kagiri vs Ann Mary Kinyanjui[2020]KEELC 3923 (KLR) and Dorothy Seyanoi Moschioni vs Andrew Stuart & Another [2014] KEHC 8238 among others. 9. In support of the Preliminary Objection, the Defendant filed his written submissions dated 22nd October 2025, through T. Nchoe & Co Advocates. The objector cited the case of Mukisa Biscuit Manufacuring Co Ltd vs West End Distributors Ltd( 1969) EA 696, and submitted that the objection raises a pure point of law, which is capable of disposing of the suit. 10. The Defendant/Objector further submitted that the Law Firm of Oyomba Mosota & Wamwea Advocates, acted for both the Plaintifi and Defendant in the transactions forming the subject matter of this suit specifically, the lease agreement dated 1st August 2015, between Defendant as the Lessor and the Plaintifi as the Lessee. 11. The Defendant further submitted that the fiduciary duty owed to former clients, as established in King Woolen Mills Ltd v Kaplan & Stratton Advocates (1990-1994) EA 244, prohibits an advocate from acting against a former client in the same or substantially related matter due to the risk of misuse of confidential information. 12. The Defendant/Objector further relied on the case of Uhuru Highway Development Ltd v Central Bank Ltd (2002) 2 EA 654 and Delphis Bank Ltd v Channan Singh Chatthe & 6 others CA No. Nai 136 of 2005 (UR) ,to emphasize that an advocate must avoid situations where real mischief or https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/387/eng@2026-01-29 2

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prejudice may result from their representation. He submitted that the representation of the Plaintifi herein by the Plaintifi’s Advocate materially afiects the Defendant by reason that the counsel for the Plaintifi is aware of the Defendant’s confidential information with regards to this matter and which information negatively impacts on the Defendant. 13. The Defendant also referred to the Arbitration clause in the Lease Agreement, which mandates dispute resolution through negotiations and arbitration, arguing that the Plaintifi's suit is in breach of this clause, and constitutes an abuse of court process. 14. The Defendant/Applicant urged the court to uphold the Preliminary Objection, disqualifies the Law Firm of Oyomba Mosota & Wamwea Advocates from representing the Plaintifi, and strikes out all pleadings filed by the said Law Firm, and awards costs of the objection to the Defendant/Objector. 15. The above are the grounds for and against the instant Preliminary Objection, which objection is basically seeking to have the Law Firm of Oyomba, Mosota & Wamwea Advocates barred from representing the Plaintifi herein for acting contrary to Rule 9 of the Advocates Practice Rules and for ofiending clause 18 of the Lease Agreement in issue on the procedure for dispute resolution between the parties. 16. It is evident that a Preliminary Objection (PO) is a legal argument raised early in a case, before the merits and demerits of the said case are heard. The Preliminary Objection may challenge the court's jurisdiction or the validity of the proceedings, and is aimed at having the case dismissed summarily and save court/party time. It's a point of law that, if it is upheld, then it ends the suit immediately, thus preventing the court from delving into the substantive evidence. See the case of Achiando v Domo & 2 others (Environment & Land Case E002 of 2025) [2025] KEELC 798 (KLR) (21 February 2025) (Ruling) 17. For a valid Preliminary Objection to stand, it must meet certain criteria as was held in the case of Mukisa Biscuits(Supra) which has been cited by both parties herein. These criteria are; Pure Point of Law: The Preliminary Objection must be based solely on legal principles and does not require the court to investigate or ascertain new facts. Based on Pleadings: The Preliminary Objection must arise directly from the existing pleadings or by clear implication from them. Assumption of Truth: For the purpose of the objection, all facts pleaded by the opposing party are assumed to be correct. No Judicial Discretion: The Preliminary Objection cannot be raised if the court is required to exercise its own discretion to make a determination. 18. To further elaborate on the above criteria, courts have made various determination on the issue of Preliminary Objection. In the case of Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others [2004] e KLR, the Court held that, “ We are of the considered view that if a party wishes to raise a Preliminary Objection and files in Court a Notice to that efiect and is subsequently served on other parties to the suit, the Preliminary points should be suficiently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that “the application is bad in law” without saying more does not assist the other parties to neither the suit nor the Court to suficiently prepare to meet the challenge. If it is only at the hearing that the Preliminary Objection is amplified and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/387/eng@2026-01-29 3

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19. Further in the case of Susan Wairimu Ndiangui Vs Pauline W. Thuo & Another [2005] eKLR, the court held as follows:“ A Preliminary Objection should not be drawn in a manner that is vague and non-disclosing of the point of law or issue that is intended to be raised. It should clearly inform both the court and the other party or parties in suficient details what to expect.” 20. Again in the case of Kuria & 27 others v Mott & 12 others (Environment & Land Case 23 of 2021) [2024] KEELC 4220 (KLR) (14 May 2024) (Ruling) , the court stated as follows: “ It is clear that a Preliminary Objection arises on a point of law only. The Court needs only to examine the pleadings and compare the issues raised therein with the law in issue and make a finding as to whether the failure to comply with what the law requires or provides is so fundamental that it goes to the root of the claim, defence, petition or plaint. This is what this Court will do in regard to the objection raised.” 21. The court will now examine only the pleadings of the parties herein and the law at this stage to determine whether what has been raised by the Defendant /Objector meets the criteria of what amounts to a Preliminary Objection as stated in the Mukisa Biscuits Case (Supra). 22. It is only when the court determines whether the objection herein is a pure t point of law, will it then determined whether the objection as raised is merited. The Defendant has contended that the Plaintifi’s advocates have contravened the provisions of Rule 9 of the Advocates Rules (Advocates Act Cap 16 LOK). 23. The Defendant averred that the Law Firm of Oyomba Mosota& Wamwea Advocates have contravened the above provisions, and there is therefore confiict of interest, breach of confidentiality and fiduciary duty and therefore the suit should be dismissed with costs. 24. However, from the description of a Preliminary Objection, it is clear that the same has to be pure points of law, which do not require ascertainment of facts. For the court to determine whether the Law Firm of Oyomba Mosota & Wamwea Advocates acted for the Plaintifi and Defendant/Objector, it will have to consider the Lease agreement, which will be tantamount to ascertaining facts. 25. The consideration of the Lease agreement means that the court will have to call for evidence, and therefore, the said objection is not a pure point of law and cannot pass as a valid Preliminary Objection. See the case of Oraro Vs Mbaja( 2005) eklr. 26. Further, in submitting that the Plaintifi’s suit has ofiended clause 18 of the Lease agreement in issue, the court too will need to look at the said Lease agreement and examine Clause 18 in regard to disputes resolution. That in efiect will mean that the court has been called to ascertain facts. Therefore, that objection is not a pure point of law, but is factual. 27. For the above reasons, this court finds and holds that the instant Notice of Preliminary Objection dated 22nd September 2025, is not a proper or valid Preliminary Objection as described in the Mukias Biscuits Case(supra) 28. Consequently, the instant Notice of Preliminary Objection cannot stand and is dismissed entirely. Having found that the Objection herein does not meet the criteria of what a proper Preliminary Objection is, then this court finds no reasons to delve into the merit and/ or demerit of the said objection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/387/eng@2026-01-29 4

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29. In a nutshell, the Defendant/ Objector’s objection dated 22nd September 2025, cannot stand and is dismissed entirely with costs to the Plaintifi/Respondent. 30. Let the suit proceed for hearing and be determined on merit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 29TH DAY OF JANUARY 2026 L. GACHERU JUDGE Delivered online in the presence of Elijah Meyoki - Court Assistant Ms Omamo holding brief Mr. Oyomba for the - Plaintifi/Respondent Mr. Lepore holding brief for Ms Nchoe for Defendant/Objector L. Gacheru Judge 29/1/2026 __________________________________________________________________________________ ELCLC E021 OF 2025 RULING Page 4 of 4 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/387/eng@2026-01-29 5

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