[2023] KEHC 2682 (KLR)
The court found that it was unable to determine the preliminary objection regarding jurisdiction and extra-territorial application of the Constitution because the contract document, which is central to the objection, was not accessible in the court record. The annextures to the applicant's Affidavit could not be...
Source-derived case information.
- Citation
- [2023] KEHC 2682 (KLR)
- Parties
- Applicant: Joan Mumbua Muli Ndunda; Respondent: Qatar Airways Q.C.S.C
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E417 of 2020
- Procedural Posture
- Constitutional Petition / Preliminary Objection; Interlocutory Order
- Outcome
- Interlocutory order; matter adjourned for provision of documents.
- Judges
- AC Mrima
- Legal Topics
- Jurisdiction of High Court, Extra Territorial Application, Choice of Law Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Mumbua Muli Ndunda
Applicant
Qatar Airways Q.C.S.C
Respondent
Procedural Posture
Constitutional Petition / Preliminary Objection; Interlocutory Order
Legal Issues
- 1 Whether the High Court of Kenya has jurisdiction over a dispute involving a contract with an exclusive choice of law and jurisdiction clause.
- 2 Whether the Kenyan Constitution applies extra-territorially to the contract in question.
- 3 Whether the court can determine the preliminary objection without access to the contract document.
Ratio Decidendi
The court found that it was unable to determine the preliminary objection regarding jurisdiction and extra-territorial application of the Constitution because the contract document, which is central to the objection, was not accessible in the court record. The annextures to the applicant's Affidavit could not be opened electronically and were not available in the physical file. Without the contract, the court could not assess the validity or effect of the choice of law and jurisdiction clause. Consequently, the court ordered the applicant to provide a complete copy of the Affidavit and annextures, and to upload the documents to the Court Tracking System, before the matter could proceed...
Court Disposition
Interlocutory order; matter adjourned for provision of documents.
Orders
- The Petitioner shall forward a complete copy of the Affidavit in support of the Petition together with the annextures thereto to the Hon. Deputy Registrar.
- The Petitioner shall upload another set of the annextures unto the Court Tracking System (CTS).
Full Case Text
Judgment text and source record
21 paragraphs
Ndunda v Qatar Airways Q.C.S.C (Constitutional Petition E417 of 2020) [2023] KEHC 2682 (KLR) (Constitutional and Human Rights) (31 March 2023) (Order)
Neutral citation: [2023] KEHC 2682 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Constitutional and Human Rights
Constitutional Petition E417 of 2020
AC Mrima, J
March 31, 2023
Between
Joan Mumbua Muli Ndunda
Petitioner
and
Qatar Airways Q.C.S.C
Respondent
Order
1. This matter is scheduled for a ruling on a Notice of Preliminary Objection dated February 11, 2021. It was filed by the Respondent.
2. The objection challenges the jurisdiction of this Court on inter alia the principle of extra-territorial application of the Kenyan Constitution. The objection is hinged on a contract entered into between the parties wherein it is alleged the choice of law and jurisdiction were exclusively agreed.
3. I have gone through the electronic file in the Court Tracking System (CTS) and found that the contract in issue is one of the documents in the Affidavit in support of the Petition. The Affidavit seems to have been uploaded, but the annextures thereto cannot open. Further, the annextures are not part of the instant Affidavit placed in the physical file.
4. Having sought the aid of the experts to have the uploaded annextures downloaded or at least to be opened, in vain, it is now impossible for this Court to determine the objection without a look at the contract document.
5. As a result, the following orders hereby issue: -a.The Petitioner shall forward a complete copy of the Affidavit in support of the Petition together with the annextures thereto to the Hon. Deputy Registrar. The Petitioner shall, as well, upload another set of the annextures unto the Court Tracking System (CTS).b.This matter shall be placed before the Presiding Judge for further proceedings.Orders accordingly.
DELIVERED, DATED and SIGNED at KITALE this31st day ofMarch, 2023. A. C. MRIMAJUDGEOrder delivered virtually in presence of;N/A for partiesCourt assistant - Chemutai