unarguable......No suit should be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment”. 122. Striking out of pleadings should be distinguished from preliminary legal points, or what is in common legal phraseology is known as preliminary objection. Preliminary objections are pure legal issues argued on assumption all facts pleaded are correct and if successful will lead to termination of the entire case. 123. This is unlike an application to strike pleadings whose central concern is a pleading and may lead to striking out of the pleading or an amendment if it can cure the defect. 124. In its application to strike out, the respondent introduced the jurisdictional questions which are my humble view legal issues that ought to have come as preliminary points of law. 125. Be that as may, the respondent cited the lack of this Court’s jurisdiction in urging that the instant Petition be struck out. It was the respondent’s contention that the Petition offends the doctrine of constitutional avoidance. 126. This doctrine that assert that the Constitution should not be trivialized in resolving matters that strictly speaking are not constitutional controversies and which may be resolved on any other legal basis or grounds. In this case, the respondent contended that the present dispute is disguised as constitutional matter but it is in actual fact a contractual dispute because users of face book are required by the respondent to consent to the terms and conditions of the agreement with the respondent before being allowed to access that service and that the said terms provide the choice of forum in event of a dispute which is the US District Court of Northern Delaware or State Court in Mateo County. 127. Further, the respondent contends that the Petition is an abuse of the Court process as the Kenyan Constitution does not have extra- territorial application and that the respondent does not have any employees in Kenya. That it had only engaged a 3rd Party sometime back whose contract with the Respondent ended in the year 2023. 128. The petitioners and interested parties vigorously contested the above assertions arguing that the Petition is not about the breach of the terms and conditions of the agreement but that it is premised on violation of fundamental rights and freedoms. 129. That the application relies on disputed facts that can only be properly canvassed during the trial. They contested the fact that the Respondent has no presence in this Country stating that the matters complained of occurred when the Respondent was still maintaining its presence in this country by having content moderators who were stationed in this Country. 130. As pointed out, this application is a striking out application yet it attacks the jurisdiction and not the pleadings perse. If it is directed to the pleadings, a cardinal principle as discerned from the foregoing authorities is that striking out a pleading would only occur if it is plainly obvious that it discloses no cause of action and is incapable of being resuscitated even by an amendment. 131. The factual positions relied upon by the respondent as a ground of objecting to jurisdiction is strongly contested by the Petitioners and the interested parties who happen to present a different narrative as demonstrated above. 132. They contend that the case is not about breach of contractual terms and should not be viewed The Judiciary of Kenya Doc IDENTITY: 2256051208128601561718914604 Tracking Number:OOEX9A2025 19/23