[2023] KEHC 26440 (KLR)

Kahunga v Karanja & another (Civil Case 1 of 2021) [2023] KEHC 26440 (KLR) (16 November 2023) (Directions)

Neutral citation: [2023] KEHC 26440 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Case 1 of 2021

DO Chepkwony, J

November 16, 2023

Between

Boniface Mwangi Kahunga

Plaintiff

and

Timothy Njuguna Karanja

1st Defendant

Assal Limited

2nd Defendant

Directions

1. This matter was scheduled for hearing of the main suit on 2nd October, 2023. And when parties and or their respective counsel appeared before court, being Mr. Amala, counsel for the Plaintiff, Mr. Odanga counsel for the 1st Defendant and M/S Wandungwa, counsel for the 2nd Defendant, all confirmed that they were ready to proceed with the hearing and requested for time indication. The court indulged them and placed the matter aside with directions that it proceeds at 12. 30pm.

2. However, when the court reconvened at 15. 01pm, Mr. Ondaga sought for the matter to be adjourned while indicating that he had two issues he wished to address for the court’s consideration; with the first being this court’s jurisdiction. The learned counsel argued that this court lacked jurisdiction to hear and determine the matter for the reason that cause of action happened in Nairobi and even the execution of the contract which the Plaintiff wished to rely on was done in Nairobi. He contended that the High Court in Nairobi is better placed jurisdiction to hear the matter as opposed to this court. In his view, this court should down its tools and transfer the matter to Milimani High Court which is better placed to hear the matter.

3. The second issue raised by Mr. Odanga, counsel for the 1st Respondent is in respect of the credibility of the Plaintiff’s second witness, Mr. Ngugi. The learned counsel avers that the said witness is not a credible witness in this matter because he was an advocate who drafted documents which the Plaintiff wishes to rely on in support of his case and has on several occasions held brief for the Plaintiff’s counsel in this matter, and thus his testifying would be in breach of the client-advocate confidentiality relationship, which is a moral issue.

4. In response to the above submissions, Mr. Anzala, counsel for the Plaintiff told court that this matter has come up for hearing on two other occasions and the issue of jurisdiction had never been raised. That the parties have confirmed being ready to proceed with the hearing and on 22nd June, 2023 the hearing date was taken. According to the Plaintiff’s counsel, the 1st Defendant admitted to this courts jurisdiction at paragraph 8 of his statement of defence, and is thus bound by his pleadings and cannot ran away. Learned counsel thus described the challenge taken on this court’s jurisdiction as a delay tactic and further that the Respondent had earlier raised jurisdictional issues which were dismissed by Hon. Justice Eboso vide a ruling dated 17th November, 2021.

5. As regards the credibility of the 2nd witness, learned counsel, Mr. Anzala submitted that the 1st Defendant is simply cherry picking in selecting which witnesses should or should not testify. This is so because the 1st witness is also an advocate who participated in the drafting of the agreements which the Plaintiff wishes to rely on and no objection was raised about him testifying. The learned counsel was of the view that the 1st Defendant will have an opportunity to cross examine all the witnesses and cure all fears including the credibility of the witnesses and authenticity of their evidence.

6. I have carefully considered the submissions by both counsel with respect to the issues raised issued by the 1st Defendant’s counsel. As regard the challenge on the court’s jurisdiction, it must be remembered that the 1st Defendant fully participated in the pre-trial process of this court culminating into the matter being certified ready for hearing. It has also been noted that the 1st Defendant admitted to this court’s jurisdiction at paragraph 8 of his statement of defence wherein he did not raise the issue of the court not having jurisdiction. Nonetheless, the court cannot assume jurisdiction in its defence. Therefore, the 1st Defendant would be in order in challenging this court’s geographical jurisdiction at any moment before the determination of the suit. And if satisfied that the suit was instituted at the wrong place, the court can decline to assume jurisdiction.

7. Section 11 to 15 of the Civil Procedure Act provides on places where a suit may be instituted. Firstly, a suit may be instituted at the court of the lowest grade, competent to try it, may be instituted where the subject matter is situated where the cause of action has arisen or where the Defendant resides as at the date of service of summons. A suit may be instituted in consideration of any of the listed factors, say for example, a suit instituted at a court within the location of the subject matter cannot be defeated and or challenged for not having been instituted within the court’s locality where a breach or cause of action has happened or within the locality of the Defendants. In such instances, the Plaintiff is at liberty to institute the suit in any of such localities in so far as the same would not cause hardship to the defendant in accessing justice as guaranteed under article 48 of the

Constitution. 8. With the above in mind, whereas the 1st Defendant avers that the contract which forms the subject of the Plaintiff’s claim was executed in Nairobi so as to warrant the transfer of the of the suit to High Court in Nairobi, he does not deny that the Defendants reside within the jurisdiction of this court. Further, it is noted that the properties allegedly offered as security to the loans purported to have been advanced to the Defendants are also within this court’s jurisdiction. Therefore, the mere fact, that the loan agreement was executed in Nairobi does not oust this court’s jurisdiction to proceed with the hearing of the matter, in that is not the sole issue for determination as the parties are residents within this court’s locality and the properties which the Plaintiff seek to realize being within this court’s territorial jurisdiction. The court declines to grant the request to transfer this suit to Milimani High Court.

9. The above notwithstanding, I have perused through the court record and established that matter was initially filed before the Thika Environment and Land court where the Defendants challenged that court’s jurisdiction. And in its wisdom, vide a ruling dated 17th November, 2021, the court directed that the case be transferred to this court for hearing and determination. It would thus be tantamount to setting aside and or reviewing the ruling dated 17th November, 2021 by a competent court of equal jurisdiction were this court to grant the request to transfer the suit to Milimani Law Courts.

10. With regard to whether the Plaintiff’s 2nd witness Mr. Ngugi should be allowed to testify, it is this court’s view that every party to a litigation ought to be accorded an opportunity to put its best foot forward. In that regard, a party is at liberty to call the witnesses who it thinks are useful in advancing its case and the opposing party has no role to play in the selection of witnesses for the other party unless it can demonstrate that the said witness cannot advance important case on the administration of justice.

11. Section 125 (1) of the Evidence Act further provides on competency of witnesses. It provides as follows:-“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years extreme old age, disease/whether of body or mind or any similar cause ….”

12. Since Section 125 above provides that all persons are competent witnesses, it is for the person alleging incompetence to demonstrate or provide proof of such incompetence. However, such incompetence must fit the categories of exception mentioned in Section 125(1) above. Neither has such demonstration of incompetence of the Plaintiff’s 2nd witness, Mr. Ngugi has been shown nor has the court been shown a provision of law specifically, precluding an advocate from testifying on matters pertaining to documents he/she has authored.

13. In light of the rendering, it is the finding of this court that Mr. Ngugi (the Plaintiff’s 2nd witness) is competent to testify in this matter and the Defendants shall have the opportunity to cross-examine him so as to bring up the incredible part of his evidence.

14. Parties are therefore directed to expedite the hearing of this matter and proceed to fix the same for hearing on 20th February, 2024. It is so ordered.

DIRECTIONS DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 16TH DAY OF NOVEMBER, 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Mumbi counsel for PlaintiffNo appearance for DefendantsCourt Assistant - Martin