Monday, September 30, 2024

Locus classicus on preliminary objections - The Case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696

 In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, the locus classicus on preliminary objections in this region, Law JA stated:

 

So far as I’m aware, 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.

 

For a preliminary objection to succeed the following tests ought to be satisfied:

  • Firstly, it should raise a pure point of law;
  • secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and
  • finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

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