https://new.kenyalaw.org/akn/ke/judgment/scc/2026/151

Ellah v Muga (Commercial Case E332 of 2026) [2026] SCC 151 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] SCC 151 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E332 of 2026 TN Mwangeka, RM June 19, 2026 Between Ellah Claimant and Elkana Ojwang Muga Respondent Ruling 1.This ruling relates to a Preliminary Objection filed by the Respondent dated 4th May 2026 challenging the jurisdiction of this court to hear the Claim and claims for rent arrears are excluded. 2.The Respondent submits that Section 12 of the Small Claims Court Act expressly provides for the jurisdiction of the court and that Jurisdiction can only be conferred upon a court by the constitution and statute. The Respondent relies of Cheruiyot Vs Kikaya (Civil Appeal E160 of 2023) 2025 KEHC 820 KLR. 3.On the part of the Claimant, the Claimant submits that the Respondent herein was a tenant of the Claimant and acknowledged that he owed the Claimant the rent arrears as submitted in the Claimant’s Statement of Claim before this Honourable Court. Further, that the subject matter of the falls within the jurisdiction of this Honourable Court as it relates to a civil claim arising from obligations between the parties and within the pecuniary limits prescribed under the Small Claims Court Act. The Claimant relies on the case of Ng’ang’a v Matheri (Civil Appeal 131 of 2023) [2024] KEHC 6713 (KLR) where the Court held that ‘where parties agree on the amount due, the dispute effectively becomes a debt recovery claim and the Small Claims Court could entertain the matter’. 4.The Supreme Court in the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR endorsed the principles set out in the Mukisa Biscuit case regarding preliminary objection defining them as those that consist of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 5.The instant Preliminary Objection as filed fits within the definition in the Mukisa Biscuits case as what is contended is the jurisdiction of the court to determine the suit. I will thus proceed to determine the same, considering the pleadings and rival submissions as filed by the parties herein. 6.I have considered the record herein and indeed the only issue for determination is whether this court has the jurisdiction to entertain a declaratory suit. It is trite law that jurisdiction is the foundation upon which any judicial authority rests. This principle has been firmly established in a long line of authorities, most notably in the celebrated decision of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, which stands as the locus classicus on the question of jurisdiction. 7.In this case the relevant constitutional provision establishing the Small Claims Court is Article 169 (1)(d) of the Constitution of Kenya, 2010 and for all intents and purposes, it is a subordinate court. Further, the Small Claims Court Act at Section 12, provides for the jurisdiction of the Court as follows;Nature of claims and pecuniary jurisdiction1.subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to—a.a contract for sale and supply of goods or services;b.a contract relating to money held and received;c.liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;d.compensation for personal injuries; ande.set-off and counterclaim under any contract.2.Without prejudice to the generality of subsection (1), the court may exercise any other civil jurisdiction as may be conferred under any other written law.3.The pecuniary jurisdiction of the court shall be limited to one million shillings.4.Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the court as the Chief Justice thinks fit. 8.Section 12 therefore does not include claims for rent arrears as part of the matters this court is competent to adjudicate on. 9.Similarly, in Christofferson V Kaveneet Kaur Sehmi t/a The Random Shop (2022) eKLR, the court held that the Small Claims court lacks jurisdiction to entertain claims on rental income. The instant Claim as filed relates to rent arrears totaling Ksh. 138,000/= being balance of residential house Rent owed for the months of April (Ksh 1800/=) May, June & July 2025 @ 40,000/= per month as per the statement of claim dated 16th April 2026. 10.Additionally, the Claimant pleads that the rent deposit of Kshs. 40,000/-for repairing and restoring the house to its initial status when the Respondent took up the tenancy. 11.In Home Seekers Limited & Anor Vs Milicent Wanjiku Macharia (2024) eKLR, the court held that the Small Claims Court lacks jurisdiction in tenancy disputes including material damage claims of a property during occupancy or the subsistence of the tenancy. These are exactly the matters which this court will be called upon to determine and which are outside its jurisdiction. 12.Ultimately, the Preliminary Objection dated 4th May 2026 succeeds, the claim herein is struck out, as this court lacks jurisdiction to hear the same, with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 19TH DAY OF JUNE 2026In the presence of; Claimant in person;HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR…N/A… for RespondentC/A EstherSIGNED BY/FOR:HON. THERESA N. MWANGEKAMOMBASA SMALL CLAIMS COURT