https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9954

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E056 OF 2024** **PATRICK GITONGA KIRIMI…………………….………… APPELLANT** **VERSUS** **IMENTI TEA FACTORY LTD……………….………………RESPONDENT** ***(An appeal from the Ruling of Hon. R. Ongira (S.R.M) in Nkubu SPMCC No. E080 of 2023 delivered on 21/3/2024)*** **JUDGMENT** 1. This Appeal arises from the Ruling of the Learned Senior Resident Magistrate Hon. R. Ongira delivered on 21/3/2024 in Nkubu SPMCC No. E080 of 2023, wherein the court struck out the Appellant’s suit with costs to the Respondent. 1. Aggrieved by the said Ruling, the Appellant set forth the following grounds in the Memorandum of appeal dated 16th April, 2024; 1. **The Learned trial Magistrate erred in law and fact in holding that the appellant did not subject himself to the dispute resolution mechanisms available in the by-laws when he actually did exhaust the said dispute resolution mechanisms.** 2. **The Learned trial Magistrate erred in law and fact in holding that the appellant did not subject himself to the dispute resolution mechanisms available in the by-laws when the respondent at paragraph 10 of the statement of defence admitted that there was a hearing over this dispute in accordance with the by-laws.** 3. **The Learned trial Magistrate erred in law and fact in not finding that based on the pleadings the question of whether the appellant followed the Dispute Resolution Mechanisms available in the by-laws or not was a question of fact which could not be canvassed through a Preliminary Objection. This is because the Respondent has admitted there was a hearing before the appellant came to Court.** * 1. **The Learned trial Magistrate erred in law and in fact in relying on by-laws that are unknown and were not verified if they are genuine and legal by laws.** 2. **The Learned trial Magistrate erred in law and fact in completely misapprehending the law relating to preliminary objections. For instance the trial court considered issues of fact in upholding the preliminary objection.** 3. **The Learned trial Magistrate erred in law and fact in giving a Ruling that was not supported by the material on record.** 4. **The Learned trial Magistrate erred in law and fact in holding that the only available route available to the appellant was Judicial Review in the High Court when this was a dispute between two private parties.** 5. **The Learned trial Magistrate erred in law and fact in striking out the suit without giving the appellant a chance to be heard on merit. This is a breach of his constitutional right.** 6. **The entire finding and Ruling of the Learned Magistrate is bad and is against the law and also against the evidence on record.** **Submissions on Appeal** 1. The Appellant, through the Firm of G.M Wanjohi, Mutuma & Co. Advocates, filed submissions dated 4/6/2025. Counsel faulted the trial Court for disregarding the Respondent’s testimony that a hearing did indeed occur and a determination made pursuant to the by-laws, and besides, **Section 44 of the by-laws** did not preclude the Appellant from seeking redress from the Judicial system. Counsel retorted that the issue whether the Appellant had exhausted the dispute resolution mechanisms provided for in the by-laws was not a proper question of law to be canvassed through a Preliminary Objection, and cited ***Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) E.A*** ***696 and Oraro v Mbaja (2005) eKLR***. Counsel argued that the dispute herein involved private parties and, as such, did not fall within the purview of Judicial Review, and cited ***John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR)***. Counsel likened the trial Court’s decision to strike out the suit based on a frivolous Preliminary Objection to condemning the Appellant unheard contrary to the provisions of **Article 50 (1) of the Constitution,** and cited ***Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another (2022) eKLR and Githiga & 5 Others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR)***. 1. The Respondent, through the Firm of Mwihia and Mutai Advocates, relied on the submissions dated 20/6/2025. Counsel cited ***Giella v Cassman Brown & Co. Ltd [1973] EA 358, Moses C. Muhia Njoroge & 2 others v Jane W. Lesaloi & 5 others [2014] KEHC 6307 (KLR) and Mrao Ltd v First American Bank of Kenya and 2 others [2003] KLR 125***, on what constitutes a Preliminary Objection. According to Counsel, the Appellant failed to comply with the Internal Dispute Resolution Mechanism envisaged under **Sections 44 and 45 of the** **KTDA MS**, and cited ***Kenya National Federation of Sugar Cane Farmers (KNFSF) Transmara Branch v Company (Petition E001 of 2022) [2022] КЕНС 14448 (KLR) (31 October 2022) (Ruling), Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] KECA 304 (KLR) and Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 61***. Counsel prayed for the dismissal of the appeal with costs, and cited ***Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others (2013) eKLR, Republic v Rosemary Wairimu Munene (Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No. 6 of 2014, Jasbir Singh Rai & another v Jaswant Singh Rai [2016] KEHC 8159 (KLR) and Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] KEHC 5086 (KLR)***. **Analysis and Determination** 1. This being a first appeal, the Court is obligated to reconsider and re-evaluate the evidence adduced in the trial Court and draw its own conclusions. 2. In ***Selle & another v Associated Motor Boat Co. Ltd [1968] EA***,the court held as follows: ***“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 3. I have considered the appeal herein, the trial Court’s Ruling, which is the subject of this appeal, as well as the submissions on record. 4. From the grounds of appeal, the issue for determination is whether the trial Court’s decision was grounded in law. 5. The gravamen in this appeal is the trial Court’s dismissal of the Appellant’s suit, on account that it offended the doctrine of exhaustion. 6. The Appellant contends that he fully complied with and exhausted the internal dispute resolution mechanism prescribed under the by-laws. The Respondent, on the other hand, asserts that the appeal was instituted prematurely in an attempt to circumvent and frustrate its efforts to resolve the matter internally. 7. Vide a letter dated 13/6/2023, the Respondent deactivated the Appellant’s grower numbers pending further investigations into alleged falsification of delivery records. In his response dated 15/6/2023, the Appellant furnished a detailed explanation to the allegations and supporting documentation. Thereafter, the Respondent sought 14 days to verify the information supplied by the Appellant and on 21/7/2023, the Appellant was duly accorded an opportunity to be heard, subsequent to which the Respondent resolved to suspend his grower numbers. 8. Having carefully considered the evidence, I am persuaded that the Appellant duly exhausted the internal dispute resolution mechanism established under **Sections 43 and 44 of the bylaws**, prior to commencing these proceedings, and as such, the Court’s jurisdiction was properly invoked. The mere fact that the Respondent ultimately rendered a decision adverse to the Appellant does not derogate from the fact that the specified internal dispute resolution process had run its course. 1. On whether the Appellant’s only recourse was by way of Judicial Review to this Court, I am guided by ***Ransa Company Ltd v Manca Francesco & 2 others [2015] eKLR***, cited in ***Five Forty Aviation Limited v Kenya Revenue Authority & 3 others [2017] KECA 626 (KLR)***, where the Court of Appeal expressed itself thus: ***“As we all appreciate, a court sitting on Judicial Review exercises a sui generis jurisdiction which is very restrictive indeed, in the sense that it principally challenges the process, and other technical issues, like excessive jurisdiction, rather than the merits of the case. It is also very restrictive in the nature of the remedies or reliefs available to the parties.”*** 2. The claim before the trial Court was for *inter alia* re-activation of the Appellant’s grower numbers and damages, which, with respect, are inappropriate in Judicial Review proceedings which challenge **lawfulness of the decision-making process, as opposed to the validity of the suspension itself, the interpretation of the bylaws and the determination of rights of the parties**. 1. That was the finding of the Court *(W.A Okwany J)* in ***Republic v Factory Unit Manager, Gianchore Tea Factory & 2 others; Ongaga & 15 others (Ex parte) (Judicial Review Cause E003 of 2024) [2025] KEHC 10286 (KLR) (10 July 2025) (Ruling)***, that; ***“On the prayers for compensation and disclosure of financial information (prayers 6–11), this Court must emphasize that judicial review is not the proper forum for determining contested factual questions, assessment of damages, or demand for broad disclosures in the absence of a clear public duty to do so. These matters may be better suited for civil proceedings or shareholder dispute resolution mechanisms under the Companies Act.”*** 2. Consequently, I find that the trial court misdirected itself in dismissing the suit solely on the premise that the Appellant had failed to exhaust the laid down Dispute Resolution Mechanism. 3. The upshot from the foregoing analysis is that the appeal is merited and it is hereby allowed in the following terms: 1. **The Ruling dated 21/3/2024 is hereby set aside.** 2. **The Appellant’s suit is hereby reinstated for hearing on merits before the Senior Principal Magistrate’s Court at Nkubu, differently constituted.** **DATED AND DELIVERED AT MERU THIS 9TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **9/7/2026** **In the presence of:-** Miss Nyokabi for the Appellant Firm of Mwihia and Mutai and Co. are for the Respondent(absent).