https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/354

Josim Instantaneous Consultium (K) Ltd v Mulongo (Civil Case 471 of 2023) [2026] KEMC 354 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEMC 354 (KLR) Republic of Kenya In the Eldoret Law Courts Civil Case 471 of 2023 ME Aligula, RM July 24, 2026 Between Josim Instantaneous Consultium (K) Ltd Plaintiff and Joshua S Mulongo Defendant Ruling 1.The plaintiff filed a plaint dated 22nd September 2023 seeking recovery of Kshs 3,600,000/- advanced under a loan agreement. The loan was secured by land parcel S/Kabras/Samitsi/1871 situated in Kakamega. 2.The defendant filed a preliminary objection dated 6th October 2024 seeking that the plaint be struck out on the ground that land parcel number S. Kabras/Samitsi/1871 is situated outside the territorial jurisdiction of this court and a such this Honourable Court lacks jurisdiction, 3.Directions were taken on the 3rd June, 2026, for the Preliminary Objection to be canvassed by way of written submissions. Having considered the pleadings and submissions by the plaintiff/ respondent and the issues for determination are:a.Whether this court has territorial jurisdiction to hear and determine the matter.b.Who shall bear the costs of the preliminary objection? 4.Section 15(a) and (c) of the Civil Procedure Act provide that suit shall be instituted where the defendant resides, carries on business, or personally works for gain or where the cause of action arises wholly or in part. A perusal of the Plaint filed revels that the defendant resides in Kakamega County, and the land used as security is situated within Kakamega. The plaintiff has its registered office in Eldoret and from the documents filed particularly the loan agreement dated 22nd March, 2022, the contract was entered into and performed at Eldoret.The case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & others [2012] the Supreme court while addressing the issue of jurisdiction stated that;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 5.In the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696: Sir Charles Newbold held as follows:-A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.Law JA., observed that: So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as Preliminary Objection may dispose of the suit. The question of the residence of parties, where they work and where the transaction happened from is apparent from the pleadings and documents before the court. 6.Territorial jurisdiction is not substantive. It is administrative, and, therefore, procedural. It is meant for the convenience of the parties, to have disputes settled within the areas where the cause of action arises, to facilitate easier attendance in court by witnesses, among other factors. Territorial jurisdiction cannot trump or override substantive jurisdiction. A suit could be dismissed, for being filed in a court lacking substantive jurisdiction, but not where territorial jurisdiction lacks. A court lacking territorial jurisdiction, ought not strike out a suit, but it should, instead, invite the parties to apply for transfer of the matter to the court with jurisdiction. 7.Substantive jurisdiction goes to substance, and lack of it cannot be overridden by Article 159 of the Constitution. Territorial jurisdiction is administrative and procedural, it is provided in the Civil Procedure Act, which governs procedure, and not by the Magistrate’s Court Act, Cap 10, Laws of Kenya, which provides for substantive jurisdiction. Territorial jurisdiction can be overrun by Article 159 of the Constitution, as a technicality of procedure. 8.The fact that the collateral parcel S/KABRAS/SAMITSI/1871 is situated within Kakamega county does not deprive this court of jurisdiction to hear and determine the dispute from a contract that was entered into and performed in Eldoret within Uasin Gishu county. I agree with the plaintiff’s cited case of Savings & Loan Kenya Ltd vs Shah 2001 EA. 92 where it was held that a court seized of jurisdiction over a contractual matter does not lose that jurisdiction merely because incidental relief touching on land situates outside its territorial limits. The primary character of the suit determines jurisdiction. 9.In the light of the foregoing this court makes the following findings and determinations;i.The preliminary objection is found to be devoid of merit and it is hereby overruled;ii.This court is found to be seized of territorial jurisdiction to hear and determine the matter.iii.Costs shall abide the outcome of the application;iv.Mention on 26th August, 2026 for compliance. JUGMENT SIGNED DATED AND DELIVERED IN ELDORET ON THIS 24TH DAY OF JULY, 2026.M. E. ALIGULARMIn the presence of C/A LepatoyeN/a for the PlaintiffN/a for the Defendnt