[2023] KEHC 25222 (KLR)

Karigithu v Cherop & another (Civil Case 1 of 2023) [2023] KEHC 25222 (KLR) (Civ) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25222 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 1 of 2023

AN Ongeri, J

November 10, 2023

Between

Nancy Wakarima Karigithu

Plaintiff

and

Cosmas Kiplagat Cherop

1st Defendant

Oliver Kiptanui Maina

2nd Defendant

Ruling

1. The defendants filed a notice of preliminary objection dated 6/6/2023 on the issue of jurisdiction on the following terms;i.That the suit before court offends the mandatory provisions of Section 65 (i) C (b) of the Anti-corruption and Economic Crime Act No. 3 of 2003 laws of Kenya.ii.That the ex parte Order issued by the High Court of Kenya, Nairobi Constitution Human Rights Division on 09-01-2023 is coram non judice and a nullity to the extent that it was issued after hearing Nancy Wakarima Karigithu's Notice of Motion dated 2022 wherein the said court determined that it lacked Jurisdiction to hear "a clear case of defamation coated as a Constitutional petition."iii.That the proceedings in this Honourable Court in respect of Nancy Wakarima Karigithu's case HCCC 2023, including the Summons to Enter Appearance is 09-02-2023, which are subsequent to the coram non judice Order issued on 09-01-2023 are unfair, an abuse of the due process of Court and a nullity, to the extent that once an Order is found to have been issued by a Court that lacks Jurisdiction, all subsequent proceedings automatically come to an end.iv.That the suit before court goes against the legal doctrine of collateral estoppel and thus ought to be struck outv.That the suit before court goes against the doctrine of res sub judice thus against Section 6 of the Civil Procedure Act and ought to be struck out with costsvi.That the suit before court contravenes the Civil Procedure Rule 2 of 2010 and Order 3. Rule 1. Order 4 Rule 1, Order 51 Rule 1 thus ought to be struck out with costs as incompetent, unfair, violates constitutional principles of the Rule of law.vii.That is a trite principle in law that all parties are bound by their pleadings consequently the pleadings before court are wrongly pleaded and wrongly in the right court thus the need to have them struck out with costsviii.That the Notice of Motion before court is brought under Article 22(1), 23(17 and 3 (b) as read with Articles 28 and 29 (d) of the constitution of Kenya and not under the Civil Procedure Act and Rules 201. The same ought to be struck out with costsix.That this Honourable court is bound by the Constitutional Principles of law and accountability Under Article 10 of the Constitution thus the need have the suit herein struck out with costs.

2. The plaintiff filed grounds of opposition dated 23/6/2023 and opposed the notice on the following grounds;a.The Defendants' objection regarding jurisdiction is unfounded since Article 165(3) of theConstitution of Kenya, 2010 grants the High Court unlimited original jurisdiction over both criminal and civil matters. Furthermore, Section 11 of the High Court (Organization and Administration) Act, 2015 empowers the Chief Justice to establish divisions within the High Court when necessary, with the aim of enhancing effectiveness, efficiency, and judicial performance.b.The Defendants’ Notice of Preliminary Objection does not raise any point of law which has been pleaded or which arises by clear implication of pleadings, and which if argued as a preliminary point, will dispose the suit. Instead, the Preliminary Objection raises, as points of law, disputed facts that require determination by this Honourable Court during the trial process.c.The Defendants’ Notice of Preliminary Objection is an abuse of the court process and a deliberate tactic to frustrate the Plaintiff. Its sole purpose is to cause unnecessary delays in the proceedings. Therefore, it is imperative that the objection be dismissed, and the Plaintiff awarded costs accordingly.

3. The parties filed submissions in the notice of preliminary objection as follows; the plaintiff submitted that the defendant’s objection on jurisdiction is baseless as Article 165(3) of the Constitution of Kenya, 2010 grants the High Court unlimited original jurisdiction over both criminal and civil matters. Further section 11 of the High Court (Organization and Administration) Act, 2015 empowers the Chief Justice to establish divisions of the High Court for purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance. The said Section 11 does not purport to limit the jurisdiction of the High Court as provided in Article 165(3) of the Constitution.

4. The plaintiff argued that in dealing with a preliminary objection that raised a ground that the Civil Division of the High Court did not have the requisite jurisdiction to hear and determine matters relating to violation of constitutional rights, the Court in Hezekiel Oira v Ethics and AntiCorruption Commission & another [2016] eKLR, held as follows:“In view of the aforegoing, a submission that a High Court Division dealing with Civil Matters does not have the jurisdiction to determine questions of violations of Human Rights is absurd and mistaken. The Constitution of Kenya (Protection of Rights and Fundamental Freedom Practice and Procedure Rules 2013) provides the procedure for commencing a cause of action on an alleged breach of fundamental freedoms but in a case where a party files a plaint claiming several causes of action in one plaint, it would not be reasonably expected that the laid down procedure would be followed in terms of moving the court by way of a petition. I have in mind the case at hand which has been commenced by way of a plaint. It is enough for the Plaintiff to plead the particulars of the alleged breach and claim any relief that he feels he is entitled under that head. It therefore makes a lot of sense and it saves a lot of judicial time for the causes of action to be heard together in one suit rather than in different courts yet all the courts have requisite jurisdiction to hear the matter. It would of course make a difference if it was only one cause of action on violation of Constitutional Rights and Freedoms in which case, the right division to hear the matter would be the Constitutional Division and in such a case, the rules would apply to the letter.”

5. On whether the Plaintiff’s suit offends Section 65(i)(a) and (b) of the Anti-Corruption and Economic Crimes Act, it was submitted that the Defendants are not informers within the meaning of the said Section 65(1)(a) and (b). In any case, where Sections 65(i)(a) and (b) is invoked, the court is obliged to examine the facts and determine whether the Defendants were indeed informers within the meaning of the said Section. Therefore, the suggestion by the Defendants that they were informers is not an issue that can be determined by way of a preliminary objection.

6. Further, the Defendants’ contention that the Plaintiff suit should be struck out for offending Order 3 Rule 1, Order 4 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules is a not a pure point of law and cannot therefore be raised as a preliminary objection. The same applies to the contention that the pleadings here are wrongly pleaded in the right court.

7. The sole issue for determination in the case is whether this court has the jurisdiction to handle this case.

8. I have considered the submissions by the parties. I find that every division of the High Court has jurisdiction to hear any matter filed in the High Court. The High Court has unlimited original and pecuniary jurisdiction to hear matter filed in any High Court.

9. The only matters the High Court has no jurisdiction to hear are those to be heard by the ELC and ELRC Divisions under Article 162 of the constitution which states as follows;System of courts(1)The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land.(3)Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).

10. I find that the Divisions of the High Court were created for administrative purposes and for efficiency but they do not delimit the jurisdiction of the High Court.

11. I dismiss the notice of preliminary objection dated 6/6/2023 and direct that parties comply with Order 11 of the Civil Procedure Rules within 30 days of this date.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ………….…………….A. N. ONGERIJUDGE