[2019] KEELRC 2096 (KLR)
The court found that the preliminary objection raised by the 1st Respondent required a detailed examination and interpretation of the contracts between the parties, which went beyond the scope of a preliminary objection as defined in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. Since the...
Source-derived case information.
- Citation
- [2019] KEELRC 2096 (KLR)
- Parties
- Claimant: Miriam Cherogony; Respondent: African Rural and Agricultural Credit Association; Respondent: International Fund for Agricultural Development
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1888 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the claimant
- Judges
- MSA Makhandia
- Legal Topics
- Preliminary Objection, Privity of Contract, Jurisdiction, Arbitration Clause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Cherogony
Claimant
African Rural and Agricultural Credit Association
Respondent
International Fund for Agricultural Development
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised pure points of law suitable for determination at this stage.
- 2 Whether there was privity of contract between the Claimant and the 1st Respondent.
- 3 Whether the existence of an arbitration clause ousted the court's jurisdiction at this stage.
Ratio Decidendi
The court found that the preliminary objection raised by the 1st Respondent required a detailed examination and interpretation of the contracts between the parties, which went beyond the scope of a preliminary objection as defined in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. Since the objection did not raise pure points of law but instead required factual ascertainment and contract interpretation, it was not properly before the court as a preliminary objection. The court therefore dismissed the preliminary objection with costs to the Claimant.
Court Disposition
preliminary objection dismissed with costs to the claimant
Orders
- The Notice of Preliminary Objection dated 19 December 2018 is dismissed with costs to the Claimant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1888 OF 2017
MIRIAM CHEROGONY CLAIMANT
v
AFRICAN RURAL AND AGRICULTURAL
CREDIT ASSOCIATION 1st RESPONDENT
INTERNATIONAL FUND FOR
AGRICULTURAL DEVELOPMENT 2nd RESPONDENT
RULING
1. Before Court is a Notice of Preliminary Objection dated 19 December 2018 by the 1st Respondent to the effect that
1. The very foundation of the suit before this Honourable Court is a consultancy agreement for the provision of consultancy services signed by the Claimant on 16th July 2015.
2. The agreement is purely between the Claimant and PCIO Knowledge Net who alone are responsible for the payment of the contract price if any is due.
3. There being no privity of contract between the Claimant and the 1st Respondent the Claimant has no legal right to sue the 1st Respondent.
4. There being no privity of contract between the Claimant and the 1st Respondent the Claimant has no reasonable and/or actionable cause of action as against the 1st Respondent.
5. Even assuming that the Claimant has an actionable cause against the 1st Respondent, the subject contract has an arbitration clause and this Honourable Court therefore lacks jurisdiction to entertain any claim arising therefrom.
6. Consequently the present suit is fatally defective and ought to be struck out and/or dismissed with costs.
2. The Claimant filed a replying affidavit and list of authorities in opposition to the Notice of Preliminary Objection on 31 January 2019, and the Court took arguments on 6 February 2019.
3. The Court has anxiously considered the submissions and come to the conclusion that a determination of the objections raised would require a detailed examination and interpretation of the tenure and import of the several contracts signed by all the parties, thus removing the objection from the ambit of what a preliminary objection ought to be.
4. A preliminary objection in the words of the Court in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 presupposes
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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop
5. The 1st Respondent’s objections extend beyond the legal parameters set out in the Mukisacase.
6. The Court therefore dismisses the Notice of Preliminary objection dated 19 December 2018 with costs to the Claimant.
Delivered, dated and signed in Nairobi on this 15th day of March 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Ambala instructed by Odindo & Co. Advocates
For 1st Respondent Ms. Opondo instructed by Oluoch Olunya & Associates
Court Assistant Lindsey