[2000] KEHC 460 (KLR)
The court found that there was a dispute as to the basic facts regarding where the contract was made. Since a preliminary objection can only be raised on a pure point of law and not where facts are disputed, the objection to jurisdiction could not be sustained. The court held that the preliminary objection was...
Source-derived case information.
- Citation
- [2000] KEHC 460 (KLR)
- Parties
- Appellant: Ndiki Crafts; Respondent: Gerald Maina Mwangi & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 683 of 1999
- Procedural Posture
- Civil Case / Preliminary Objection Ruling
- Outcome
- preliminary objection overruled with costs
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Contract Formation, Conflict of Laws
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndiki Crafts
Appellant
Gerald Maina Mwangi & Another
Respondent
Procedural Posture
Civil Case / Preliminary Objection Ruling
Legal Issues
- 1 Whether the High Court of Kenya has jurisdiction to hear a suit based on a contract allegedly made outside Kenya.
- 2 Whether a preliminary objection can be sustained where there is a dispute as to the basic facts.
Ratio Decidendi
The court found that there was a dispute as to the basic facts regarding where the contract was made. Since a preliminary objection can only be raised on a pure point of law and not where facts are disputed, the objection to jurisdiction could not be sustained. The court held that the preliminary objection was without merit and appeared intended to delay the proceedings. Accordingly, the preliminary objection was overruled with costs to the appellant.
Court Disposition
preliminary objection overruled with costs
Orders
- The preliminary objection is overruled.
- Costs awarded to the appellant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
civ case 683 of 99
NDIKI CRAFTS ……………………. APPELLANTS
VERSUS
GERALD MAINA MWANGI & ANOTHER…………….…… RESPONDENT
JUDGMENT.
December 15, 2000 T Mbaluto, Judge delivered the following ruling. Miss Mukuru for the defendant in this matter has raised a preliminary objection on the issue of jurisdiction. She contends that this court has no jurisdiction to hear the suit because the contract was made in New York, outside the jurisdiction of this suit.
In support of her objection Miss Mukuru submitted that the suit is based on a contract in which the offer was made and accepted in New York. Payment was also to be made in New York.
The plaintiff does not accept all those assertions. She claims that the goods comprising the basis of the contract were ordered in Kenya. Given the conflicting assertions made by the parties, it is obvious that there is no agreement regarding where the contract was made. The law as to preliminary objections was clearly stated in the now famous case of Mukisa Biscuits Co v West End Distributors Ltd (1969) E A p 701 where Sir Charles Newbold, P stated:-
“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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”
There is in this matter no agreement as to the basic facts of this case. The place where the contract was made is disputed and the point taken by Miss Mukuru clearly lacks merit. It is in my view solely intended to delay the plaintiff in the hearing of this suit. For those reasons, the preliminary objection is overruled with costs.