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Court of AppealDismissedCommercial Appeal arising from Commercial Misc. Application No. 15 of 2016 (High Court, Commercial and Tax Division)· [2025] KECA 1759 (KLR)

Interactive Gaming & Lotteries Limited v Ngatia & Associates Advocates

Court of Appeal
24 October 2025
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a preliminary objection raising disputed facts should be dismissed, not necessarily struck out.

What this practically means

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Executive summary

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This Court of Appeal judgment at Nairobi (Mumbi Ngugi, P. Nyamweya and W. Korir, JJ of Appeal) dismissed an appeal by Interactive Gaming Lotteries Limited against a ruling of M. Kasango J of the High Court, Commercial and Tax Division, delivered on 29th November 2018, which overruled, rejected and dismissed the appellant's preliminary objection to an Advocate-Client Bill of Costs filed by Ngatia & Associates Advocates and referred the bill to taxation. The objection contended there was no advocate-client relationship and that, absent a retainer, the court lacked jurisdiction to tax the bill. The trial judge found the objection improperly raised contested facts by way of preliminary objection and should have been brought by application supported by affidavit evidence. Before the Court of Appeal the appellant argued that, having found the objection incompetent, the judge should have struck it out rather than dismissed it, and that the judge effectively determined the disputed retainer without evidence. The appellate court, applying the settled Mukisa Biscuit threshold confirmed by the Supreme Court, held that a preliminary objection raising contested facts cannot succeed, but that there is no hard and fast rule requiring striking out rather than dismissal: a finding that an objection raises contested facts goes to its merit, making dismissal a proper response. It distinguished Ngoni-Matengo, which concerned an entire appeal's competence. The court found the trial judge made no determination on retainer and the appeal lacked merit. The appeal was dismissed with costs to the respondent. The judgment binds lower courts on the discretionary consequences of preliminary objections raising contested facts.

Key legal issues

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01

Whether a preliminary objection found to raise contested facts must be struck out rather than dismissed

Holding

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.

Reasoning

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.

p. 5
02

Whether the trial court determined the contested issue of retainer without evidence

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.