[2024] KEHC 7863 (KLR)

15 Minutes Logistics Limited v Mbala (Civil Appeal E928 of 2022) [2024] KEHC 7863 (KLR) (Civ) (1 July 2024) (Judgment)

Neutral citation: [2024] KEHC 7863 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E928 of 2022

WM Musyoka, J

July 1, 2024

Between

15 Minutes Logistics Limited

Appellant

and

Catherine Mbala

Respondent

(An appeal arising from the judgment of Hon. DS Aswani, Adjudicator, delivered on 24th october 2022, in Milimani SCCC No. E4481 of 2022)

Judgment

1. The suit, at the primary court, was initiated by the appellant, against the respondent, for a sum of Kshs. 147,830. 00, being the value of a motorcycle, registration mark and number KMFW 346B, the subject of a sale between the 2 parties, which the respondents took possession of, but never paid for. The respondents did not file a response to the claim. Instead, they filed a notice of preliminary objection, dated 7th September 2022, arguing that the suit contravened section 15 of the Civil Procedure Act, Cap 21, Laws of Kenya, for the court lacked geographical or territorial jurisdiction. The preliminary objection was canvassed by way of written submissions, and in the end the trial court upheld the objection, and closed the suit file.

2. The appellant was aggrieved, hence the instant appeal. The grounds, in the memorandum of appeal, dated 10th November 2022, revolve around the trial court not appreciating that the jurisdiction of the Small Claims Court was delineated by the Small Claims Court Act, Cap 10A, Laws of Kenya; failing to appreciate the provisions of the Small Claims Court Act; the trial court disregarding the tenets of the law relating to preliminary objections; and the trial court not considering the submissions made by the appellant.

3. Directions on the disposal of the appeal were given on 8th November 2023, for canvassing of the appeal by way of written submissions. I have seen written submissions by the appellant, but none by the respondents. Indeed, the respondents did not participate in the appeal proceedings, despite being served.

4. The appellant has identified 3 issues for determination: whether the objection raised met the test for a preliminary objection; whether the trial court lacked territorial jurisdiction; and whether the decision of the trial court was based on the facts pleaded or presented. On preliminary objection, it is submitted that the issue of jurisdiction could not be determined on the basis of the pleadings, and was dependent on evidence being taken, which made it a substantive issue for determination at the trial. Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors Limited [1969] EA 696 (Sir Charles Newbold, P, Duffus VP & Law JA), Zipporah Njoki Kangara vs. Rock and Pure Limited & 3 others [2021] eKLR (Naikuni, J) and Peter Ochola Omburo vs. Inter-Diocesan Properties Limited [2016] eKLR (Marete, J) are cited. On territoriality, with respect to jurisdiction, sections 1 to 17 of the Civil Procedure Act, and Korea Nyamai vs. Neema Parcels Limited [2021] eKLR (Nyakundi, J) and Kenya Plantation and Agricultural Workers Union vs. Kakuzi Limited [2014] eKLR are cited, for the argument that jurisdiction of a court is dependent on many factors. Timamy Issa Abdalla vs. Swaleh Salim Swaleh Imu & 3 others [2014] eKLR (Okwengu, Makhandia & Sichale, JJA) and Korea Nyamai vs. Neema Parcels Limited [2021] eKLR (Nyakundi, J) are cited for the argument that decisions of the court ought to be based on reasonable facts.

5. On whether the preliminary objection was a proper one, one has to have recourse to Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors Limited [1969] EA 696 (Sir Charles Newbold, P, Duffus VP & Law JA). It meets one aspect of the criteria set in that decision, that a determination, on whether or not there was jurisdiction, could have the effect of terminating the suit, for where the is no jurisdiction, the court drops its tools, according to Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] eKLR (Nyarangi, Masime & Kwach, JJA).

6. I agree with the appellant, that, although the issue of territoriality could be determined from the pleadings, for it was clear from the material on record that the cause of action arose at Taveta, there would still be other factors at play, the place of residence or business of the respondent, for example. However, that argument, correct as it is, defeats the case by the appellant, given that the suit was by the appellant, and the appellant did not disclose all the facts in its pleadings, to enable the court have a full view of all the issues at hand, such as the place of address of the respondent, which was not pleaded or disclosed in the claim.

7. On the second ground, as to whether the trial court lacked geographical or territorial jurisdiction, I will start by pointing out that the law, with respect to the place of suing, is the Civil Procedure Act, specifically in sections 11, 14 and 15. These provisions apply to the Small Claims Court, given that the Civil Procedure Act governs procedures at the High Court and the subordinate courts, and the Small Claims Court is a subordinate court. The cause of action arose at Taveta, and, therefore, the suit ought to have been filed within Taita Taveta County. However, given that subordinate courts, inclusive of the Small Claims Court, have jurisdiction to determine disputes of this nature, the lack of territorial jurisdiction could be addressed, by advising the parties to apply, under section 18 of the Civil Procedure Act, to the High Court, for transfer of the matter to the court having territorial jurisdiction, instead of dismissing the matter.

8. On the third issue, whether the trial court did not consider the reasonable facts, I am not persuaded that the court was not reasonable in the sense of not considering what it ought to have considered. It went wrong on only one critical issue, closing the suit because the court at Nairobi lacked jurisdiction, instead of leaving it to the parties to move the High Court for transfer.

9. In view of the above, I find and hold that there is merit in the appeal herein. I allow it. The effect shall be that the order made on 14th September 2022, closing the file, is hereby set aside, and substituted with an order re-opening the file, in Milimani SCCC No. E4481 of 2022, and directing that the said suit shall be transferred to the magistrate’s court at Taveta, or the Small Claims court there, if there be one. Each party shall bear its own costs. Orders accordingly.

DELIVERED BY EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA,THIS 1st DAY OF JULY 2024W MUSYOKAJUDGEMs. Veronica, Court Assistant, Milimani, Nairobi.Mr. Arthur Etyang, Court Assistant, Busia.AdvocatesMs. Matingi, instructed by Harry Karanja & Company, Advocates for the appellant.