Interactive Gaming & Lotteries Limited v Ngatia & Associates Advocates
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
#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
- 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)
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", 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.