[2015] KEHC 6352 (KLR)
The court found that only the first limb of the defendant's preliminary objection—challenging the court's jurisdiction—was a proper point of law. The other grounds relied on disputed facts and were not suitable for a preliminary objection. Upon considering the authorities and the provisions of Cap 301, the court...
Source-derived case information.
- Citation
- [2015] KEHC 6352 (KLR)
- Parties
- Plaintiff: Miliki Limited; Defendant: Patrick Mukiri Kabundu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 126 of 2014
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to plaintiff
- Judges
- MM Kasango
- Legal Topics
- Jurisdiction of High Court, Business Premises Rent Tribunal, Injunctive Relief, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miliki Limited
Plaintiff
Patrick Mukiri Kabundu
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear the suit instead of the Business Premises Rent Tribunal.
- 2 Whether the preliminary objection raised proper points of law.
- 3 Whether the reliefs sought by the plaintiff are within the jurisdiction of the Tribunal.
Ratio Decidendi
The court found that only the first limb of the defendant's preliminary objection—challenging the court's jurisdiction—was a proper point of law. The other grounds relied on disputed facts and were not suitable for a preliminary objection. Upon considering the authorities and the provisions of Cap 301, the court held that the Business Premises Rent Tribunal lacks jurisdiction to grant injunctive relief or declarations, which are remedies sought by the plaintiff. Therefore, the High Court has jurisdiction to hear the suit, and the preliminary objection was without merit and dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed with costs to plaintiff
Orders
- The preliminary objection dated 27th October 2014 is dismissed with costs to the plaintiff.
- A date will be given for the hearing of the applications dated 14th October 2014 and 19th October 2014, which shall be heard together.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 126 OF 2014
MILIKI LIMITED ………………………………..……….……..…….…… PLAINTIFF
V E R S U S
PATRICK MUKIRI KABUNDU ……………………..…………………DEFENDANT
RULING
1. For consideration in this Ruling is the Defendant’s Preliminary Objection dated 27th October 2014.
2. The Preliminary Objection which I need to say was drafted and filed by Defendant acting in person is in the following terms-
“TAKE NOTICE that the Defendant PATRICK MUKIRI KABUNDU will at the hearing hereof oppose the NOTICE OF MOTION application filed on 14th October 2014 and suit. The Defendant will rely on the following GROUNDS-
1. The High Court lack jurisdiction to entertain this suit.
2. The suit is fatally defective and is without merit.
3. The suit herein is an abuse of Court process.
REASONS WHEREFORE the Defendant prays that the suit herein be dismissed with costs.”
3. It is essential to set out what is a proper Preliminary Objection as held in the celebrated case by Law, JA and Sir Charles Newbold P. in MUKISA BISCUITS MANUFACTURING CO LTD VS WEST END DISTRIBUTORS (1969)EA 696. At page 700, Law, JA stated that:
“…. a ‘preliminary objection’ consists 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. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Sir Charles Newbold P. added as follows at page 701:
“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.”
4. Bearing that holding in MUKISA case (supra). It is only the first limb of objection that is indeed a proper objection on a point of law. The other objections rely on disputed facts and ought to have been ground for an application and not to a Preliminary object.
5. The basis upon which the first limb was argued by the Defendant is that the Plaintiff was wrong to have filed this action before this Court, rather than at the Business premises Rent Tribunal (BPRT) as provided under Cap 301.
6. The Plaintiff very rightly opposed the Objection on the ground that it sought injunctive orders in this case, which orders are not available at the BPRT. There are many legal authorities supporting the Plaintiff’s response to the objection.
7. In the case PATRICK B. MAKARI –Vs- MRS DORIS OLOUCH ABIERO (2004)eKLRthe High Court held-
“Having perused through the pleadings and the application before this Court, I find that the Plaintiff’s claim before the High Court is for an injunction, a remedy that only the High Court can grant, and one that he cannot seek before the BPRT. Accordingly, this suit is properly before this Court.”
The Court of Appeal in the case MOMBASA GAS SUPPLIES LIMITED –Vs- THE REGISTERED TRUSTEE AND TWO OTHERS CIVIL APPEAL NO. 258 OF 2003 it was stated-
“Further, we note that the Plaint filed by the Appellant was seeking as we have reproduced above, a declaration and an injunction. The Tribunal has no jurisdiction to entertain such a claim. That being so, we think that it was not an abuse of the court process when the appellant sought the intervention of the superior Court to protect it against any further notice seeking what it felt was rent far in excess of what it maintained was agreed between the parties.”
8. From the above authorities and indeed considering the Act of Parliament which set up the BPRT, Cap 301, the BPRT does not have jurisdiction to entertain prayers of declaration or for injunction.
9. Accordingly the Preliminary Objection dated 27th October 2014 is dismissed with costs to Plaintiff.
10. It is clear that there is need to dispose of two pending applications in this matter.
11. Accordingly at the reading of this Ruling a date will be given for the hearing of the applications dated 14th October 2014 and 19th October 2014. Those two applications shall be heard together.
DATED and DELIVERED at MOMBASA this 26TH day of FEBRUARY, 2015.
MARY KASANGO
JUDGE