1st and 2nd Petitioner’s submissions 79. Nzili and Sumbi Advocates filed submissions dated 14th February 2024 for these petitioners and identified the issues for discussions as: whether the question of jurisdiction as raised by the respondent is a preliminary question of law or a substantive question of law; whether the respondent’s application has been argued as a preliminary objection, and if so, whether it has met the test for a valid preliminary objection; whether the question of jurisdiction as raised by the Respondent is one of the substantial questions of law for which certification was sought under the 1st and 2nd petitioners application dated 14th December 2022, whether this Court has jurisdiction to hear the petition and grant the prayers sought; and whether the petition offends the doctrine of constitutional avoidance. 80. Counsel in the first issue argued that the respondent’s application as raised constitutes a preliminary objection. It was argued that the respondent in filing the application had misrepresented what the petition is about. Furthermore, that the application raises disputed facts thus a substantive question which can only be determined at the hearing of the petition. 81. For this reason, Counsel submitted that the respondent’s application having been disguised as a preliminary objection had failed to meet the test for preliminary objections so as to be sustainable. Reliance was placed in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR where the Supreme Court guided that it was instructive that for a court to hear a preliminary objection, it must be satisfied that there is no proper contest as to the facts; the facts are deemed agreed as they are presented in the pleadings on record. 82. Like dependence was placed in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696. 83. According to Counsel the issue of jurisdiction as raised by the respondent is one of the substantial questions for which the petitioners seek certification in their application dated 14th December 2022. Counsel stressed that the parties must be informed of the Court’s decision regarding the issue of certification first, so that any party seeking to appeal is able to exercise their right to appeal or approach the Court of Appeal for any necessary orders on stay of proceedings. Reliance was placed in Bia Tosha Distributors Limited v Kenya Breweries Ltd & 6 Others [2023] KESC14 (KLR) where the Supreme Court held that: “Every litigant before court is entitled to a decision”. 84. On the next issue, Counsel submitted that this Court based on the petitioners’ averments has subject matter jurisdiction, territorial jurisdiction, jurisdiction to grant the remedies sought and in personam jurisdiction. Reliance was placed in Republic v Magistrates Court, Mombasa; Absin Synegy Limited [2022] KEHC 10 (KLR) where it was held that: “26. Back to the three factors which affect court’s jurisdiction discussed above, First, pecuniary literally means ‘related to money.’ Pecuniary jurisdiction sets the pecuniary limits on the jurisdiction of a court. Every court is deemed to have a certain monetary limit of which it can entertain cases and decide. Second, Territorial jurisdiction is the territorial limit in which the law is applicable or the court has power to decide upon. Third, Subject Matter Jurisdiction refers to the nature of the claim or controversy. This means that certain courts are precluded from entertaining suits of particular nature. When the court has no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide the question of jurisdiction and if it concludes that it has no jurisdiction over the matter it downs its tools. 27. Strictly, a suit is only effective if the court has jurisdiction to adjudicate the issues raised in the suit. The jurisdiction of the court to adjudicate those issues depends on a number of elements including: - whether the suit discloses a cause of action which that court has jurisdiction to determine (eg breach of contract, negligence etc; whether the court has jurisdiction over the defendant; whether the court has jurisdiction to grant the remedy sought. Importantly, and highly The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 13/23