[2023] KEHC 25396 (KLR)

Mana Pahrmacy Ltd v Sai Pharmaceuticals Ltd (Civil Appeal E762 of 2021) [2023] KEHC 25396 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25396 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E762 of 2021

AN Ongeri, J

November 17, 2023

Between

Mana Pahrmacy Ltd

Appellant

and

Sai Pharmaceuticals Ltd

Respondent

(Being an appeal from the ruling of Hon. D. W. Mburu (SPM) in Milimani CMCC No. E8520 OF 2021 delivered on 12/11/2021)

Judgment

1. This appeal arose out of a ruling delivered on November 12, 2021 in a Notice of Preliminary Objection filed by the appellant on the basis that CMCC no E8520 of 2020 was sub judice since it was a duplicity of another suit namely Bungoma CMCC No 25 of 2020.

2. Further, that the trial court had no jurisdiction to hear the matter since the contractual place where both the appellant and respondent reside and carry on business was outside the jurisdiction of the trial court.

3. The trial court dismissed the notice of preliminary objection on the basis that no pleading in respect of Bungoma CMCC E025 of 2020 were tabled before the trial court to enable it make a determination.

4. The appellant has appealed to this court on the following grounds.i.That the learned magistrate erred in law and misdirected himself when he failed to consider the applicants’ submissions on points of law and facts on jurisdiction.ii.That the learned magistrate erred in fact in failing to analyse or to give consideration to the evidence adduced by the appellant and thereby arriving at a decision which was erroneous in the circumstance.iii.That the learned magistrate erred in law and in fact by failing to find that the issues of appellant’s place of business, place of carrying on business, arose to affirm that the honourable court lacked jurisdiction and they were already admitted and not contested by the respondent in their submissions.iv.That the learned magistrate erred in fact in finding that the appellant had failed to attach pleadings from Bungoma CC No E025 of 2020 when in fact they had attached the same to their submissions.

5. The parties filed submissions as follows: the appellant submitted that the learned magistrate erred in law and misdirected himself in paragraph 9 of the ruling by noting that the appellant had failed to provide the court with a copy of the said pleadings which was not the case. The copy of the plaint was part of the bundle of documents attached to the appellant’s duly filed submissions.

6. The appellant further submitted that the appellant is a non-resident defendant within the description of section 15 of the Civil Procedure Actcap 21 which provides“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—i.the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; orii.any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; oriii.the cause of action, wholly or in part, arises”

7. There was no express contract between the plaintiff and defendant companies. The place where the contract was to be performed or performance thereof completed was the place of delivery of the goods which was the defendant’s principal and only place of business in Bungoma. The place where the money was expressly or impliedly payable was also the defendant’s place of business in Bungoma County. The appellant in support cited Mombasa HC CA 178 of 2016; County Government of Kakamega v Ufanisi Freighters (K) Limited Trawlers Limited [2018] eKLR allowed an appeal and agreed that the lower court had no jurisdiction in a case filed for the recovery of money for work procured on the basis that the defendant (appellant) offices were located and contract to be performed in Kakamega while the case was filed in Mombasa.

8. The appellant further submitted that this suit is a mere replica and /or duplicity of Bungoma CC E025/2020 where the parties herein are directly involved and the matters herein raised are substantially in issue.

9. The respondent submitted that the learned magistrate analysed the law and considered the appellant’s counsel’s submission on point of territorial jurisdiction and doctrine of duplicity. The Magistrate observed that matters as to where cause of action arose, place where contract was made and place where parties ordinarily carry on business are matters of fact which are contestable and since they require evidence cannot conclusively determine the suit as is expected of a Preliminary Objection.

10. On the issue as to whether the suit is sub judice the appellant had not placed before the court any material to enable the court to make a determination as to whether the parties in Nairobi MCCC E8520 of 2021 were related to the parties, issues and subject of Bungoma CMCC E025 of 2020. The respondent submitted that sub judice rule would not apply as there is no identity of the matter in issue in both suits.

11. Further that the preliminary objection fails the test for applicability of the subjudice rule because if a final decision is to be reached on Bungoma MCC E025 of 2020 such decision would not operate as res judicata in Nairobi MCCC E8520 of 2021.

12. The respondent argued that the Notice of Preliminary Objection is not argued on the assumption that all facts pleaded by the plaintiff are correct. Therefore, the facts have to be ascertained and the issues cannot be conclusively be determined at a preliminary stage. That the appeal herein therefore lacks merit as the trial magistrate was correct in his finding.

13. The duty of the first appellate court is re-evalaute the evidence before the trial court and to arrive at its own conclusion whether to support the findings of the Trial court.

14. The issues for determination in this appeal are as follows;i.Whether the trial court was right in dismissing the notice of preliminary objection.ii.Whether the appeal should be allowed.iii.Who pays the costs of this appeal?

15. On the issue as to whether the trial court was right in dismissing the notice of preliminary objection, the issues raised in the preliminary objection could not be conclusively be determined since no materials were placed before the court to show that the parties in Nairobi MCCC E8520 of 2021 and Bungoma CMCC No. 25 of 2020 were the same .

16. I find that details of Bungoma CMCC No. 25 of 2020 have not been availed.

17. The Plaint describes the physical office of the defendant as based in Nairobi. A suit can be filed where the defendant resides or where the cause of action arose.

18. The Court of Appeal in Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2017] eKLR stated as follows:-“…….section 15 of the Civil Procedure Act makes provision on where suits should be filed and requires that suits should be filed where the defendant lives or where the cause of action arises.”

19. The appeal has no merit and the same is dismissed.

20. Each party to bear its own costs of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ………………………A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent