Cb Gor & Gor Company Advocates v Kenindia Assurance Company Limited

4. The Applicant further stated that the preliminary objection would result in the defeat of substantial justice contrary to the tenets of natural justice and overriding principles under Section 1A and 1B of the Civil Procedure Act. That pursuant to the decisions in Wakini Kiarie and Company Advocates v Kenya Orient Insurance Co. Ltd (2021) eKLR and Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v Invesco Assurance Company Limited (2016) eKLR, the preliminary objection is misconceived and frivolous. 5. That the preliminary objection seeks to use the court as a sword and not a shield contrary to the premise of the court in Kigwor Company Limited v Samedy Trading Company Limited (2021) eKLR. 6. The court directed that the PO be canvassed by way of written submissions. Only the Respondent complied with the directions. 7. The Respondent/Client in their submissions dated 25th October 2024 argued that the relationship between the advocate and client having been formed by a retainer agreement is contractual and the same creates a contract for service which is enforceable within 6 years after completion of services pursuant to Section 4 (1) of the Limitation of Actions Act which position was reiterated in Abincha & Company Advocates v Trident Insurance Company Limited (2013) eKLR. 8. It was submitted that the primary suit from which the claim of costs arose, that is Mombasa CMCC No. 2986 of 2005, was concluded on 13th August 2010 and that it is on this date that a consent judgment was filed. That a consent letter was filed in court, being the last legal service offered by the Applicant, and the Respondent/Client was appraised of the same vide a letter as indicated in the Applicant’s Bill of Costs. 9. That the Applicant subsequently filed its Bill of Costs on 26th June 2024, 14 years after conclusion of the primary suit, which is 8 years outside the limitation period of 6 years as provided for under Section 4(1)(a) of the Limitation of Actions Act. The Respondent/Client therefore prayed for the Bill of Costs to be struck out with costs for being statute barred. Analysis 10. 11. Having considered the Preliminary Objection, the Grounds of Opposition dated and the Respondent’s submissions, the issues for determination are; a. Whether the Preliminary Objection is merited; and b. What orders on costs should issue. The tests to be satisfied for a preliminary objection to be successful were reiterated by the court in Oraro v Mbaja (2005) eKLR as follows: “ I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. any assertion which claims to be a preliminary objection and yet tit bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement with learned counsel, Mr. Ouguo, that “where a court needs to investigate facts, a matte cannot be raised as a preliminary point.” 12. For a Preliminary Objection to succeed the following tests ought to be satisfied; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4273/eng@2026-02-12 2

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a. it should raise a pure point of law; b. it is argued on the assumption that all the facts pleaded by the other side are correct; and c. it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 13. A valid Preliminary Objection should, if successful, dispose of the suit or application 14. On the one hand, the Respondent was of the view that the Bill of Costs filed on 26th June 2024 was statute barred and should be struck out on the basis that the relationship with the Applicant was formed by a retainer which was contractual in nature and enforceable within 6 years after completion of services, therefore offended Section 4(1)(a) of the Limitation of Actions Act. 15. On the other hand, the Applicant maintained the position that there was material non-disclosure on the part of the Respondent as there was continuous work between the Applicant and the Respondent vide a Service Level Agreement dated 25th July 2024, therefore the preliminary objection raises issues that would require the attention of the taxing master to substantiate the veracity. 16. The preliminary objection is anchored on a point of law which is Section 4(1)(a) of the Limitation of Actions Act. However, a determination of the limitation and whether the services were completed or whether there is continuous engagement, raises an issue of disputed facts. The objection therefore ceases to be a pure point of law. 17. The assertion by the Applicant that there was continuous work through a Service Level Agreement dated 25th July 2024 and whether the agreement extended the retainer or constituted a new or continuing professional relationship is a factual matter that requires evidence to be resolved. This responsibility lies with the taxing master for determination. The preliminary objection therefore fails to meet the threshold as discussed herein above. Determination 18. Having found as above, the following orders flow; a. That the Preliminary Objection dated 10th September 2024 lacks merits and is hereby dismissed. b. The Bill of Costs dated 26th June 2024 be placed before the Taxing Master for determination. c. Costs be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026. ……………………… HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: N/A by the Applicant. Mr. Louis Johnson Advocate h/b for Ms. Achieng Advocate for the Respondent. Ms. Salwa, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4273/eng@2026-02-12 3

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