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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