https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9529

Omwaka alias Guardian Angel v Skysail Mabati Ltd (Civil Case E007 of 2023) [2026] KEHC 9529 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9529 (KLR) Republic of Kenya In the High Court at Machakos Civil Case E007 of 2023 AN Ongeri, J June 12, 2026 Between Peter Audiphaxad Omwaka alias Guardian Angel Plaintiff and Skysail Mabati Limited Defendant Ruling 1.The Notice of Preliminary Objection dated 17th September 2025 was filed by Ababu Namwamba & Co. Advocates on behalf of the defendant. 2.The defendant argues that the court before which the suit has been brought lacks jurisdiction to hear the matter. 3.This objection is based on Section 7(1) of the Magistrates’ Court Act 2015, which limits the pecuniary jurisdiction of a resident magistrate’s court to civil claims where the subject matter does not exceed five million shillings. 4.The defendant further cites Section 8(1) of the same Act, which grants magistrates’ courts’ jurisdiction over Bill of Rights violations only within those pecuniary limits. 5.The defendant contends that judicial authority in this case is conferred specifically upon a resident magistrate’s court, not the court currently seised of the matter. 6.Consequently, the defendant prays that the suit be struck out for want of jurisdiction, with costs awarded to the defendant. 7.The defendant submitted in writing that he filed a preliminary objection challenging the High Court’s jurisdiction to hear the plaintiff’s suit. 8.The objection is based on Sections 7(1) and 8(1) of the Magistrates’ Courts Act, 2015, which give magistrates’ courts jurisdiction over civil matters where the subject matter’s value does not exceed statutory limits. 9.The plaintiff’s claim involves an alleged breach of contract for KES 2,000,000 and copyright infringement arising from the same commercial transaction. 10.The defendant argues that the preliminary objection raises a pure point of law, namely jurisdiction, which can dispose of the suit without evidence, as established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. 11.Citing Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd, the defendant states that jurisdiction is everything and must be determined at the earliest opportunity. 12.Under Section 7(1)(e) of the Magistrates’ Courts Act, a Resident Magistrate has jurisdiction where the subject matter’s value does not exceed KES 5,000,000. 13.The plaintiff’s claim for KES 2,000,000 falls squarely within that pecuniary limit. 14.The defendant submits that litigants cannot bypass the magistrates’ court merely by filing in the High Court, and relying on Phoenix of East Africa Assurance Company Limited v S.M. Thiga t/a Newspaper Service, such filing renders the suit incompetent. 15.The defendant contends that the plaintiff is improperly trying to clothe a commercial dispute in constitutional language to defeat statutory jurisdiction. 16.The plaint discloses a commercial contract, alleged non-payment, and alleged unauthorized use of the work—all ordinary civil claims, not a constitutional petition under Articles 22 and 23. 17.The Court of Appeal in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another cautioned against improper constitutionalisation of ordinary disputes. 18.Similarly, the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others held that constitutional jurisdiction should not be invoked where adequate statutory remedies exist. 19.The dispute can be fully determined under the Law of Contract and the Copyright Act, 2001. 20.The plaintiff’s reliance on Section 8(2) and (3) of the Magistrates’ Courts Act and the Royal Media Services Ltd v Attorney General & 6 others decision is misplaced because the suit is not brought under Article 22, no constitutional petition has been filed, and the pleadings show a civil claim for damages. 21.Section 8(3) only restricts magistrates’ courts from awarding compensation in constitutional Bill of Rights enforcement proceedings; it does not oust their jurisdiction over ordinary civil claims for damages. 22.Copyright infringement claims are civil claims routinely adjudicated by magistrates’ courts within pecuniary limits. 23.The plaintiff cannot avoid statutory jurisdictional limits by merely invoking intellectual property or fundamental rights in submissions. 24.While Article 165(3) grants the High Court unlimited original jurisdiction, Parliament has validly created a structured court hierarchy, and litigants must file in the appropriate forum. 25.In Equity Bank Limited v Bruce Mutlu kut/a Diani Tour & Travel, the Court of Appeal reaffirmed that parties must file suits in courts with appropriate pecuniary jurisdiction. 26.The defendant submits that the preliminary objection is meritorious, and the High Court should down its tools, uphold the objection, strike out the suit, and award costs to the defendant. 27.The plaintiff argues that the High Court, not the Magistrates’ Court, has jurisdiction to hear the case, which involves both breach of contract and copyright infringement. 28.The defendant’s preliminary objection is based on the pecuniary jurisdiction of the Magistrates’ Court under Sections 7 and 8 of the Magistrates’ Court Act, claiming that the contractual sum of KES 2,000,000 falls within the magistrates’ pecuniary limits. 29.The plaintiff contends that the real nature of the claim concerns infringement of intellectual property rights and compensation for violation of rights under the Bill of Rights. 30.Citing Articles 22, 23, and 165 of the Constitution, the plaintiff maintains that the High Court is constitutionally mandated to hear applications for redress of denied, violated, or threatened fundamental rights and freedoms, including awarding compensation. 31.The plaintiff relies on the Royal Media Services case to argue that subordinate courts currently lack jurisdiction to enforce Bill of Rights claims absent specific enabling legislation. 32.Under Section 8(2) of the Magistrates’ Act, a magistrates’ court may only hear Bill of Rights applications relating to Article 25(a) and (b) of the Constitution. 33.Section 8(3) of the Magistrates’ Act explicitly excludes magistrates’ courts from having jurisdiction to award compensation for loss or damage resulting from violation of the Bill of Rights. 34.Therefore, the plaintiff asserts that the preliminary objection is legally flawed, that the High Court retains proper jurisdiction, and that the objection should be dismissed with costs. 35.The issues for determination in this matter are as follows;i.Whether the defendant’s Notice of Preliminary Objection raises a pure point of law capable of disposing of the suit at this stage.ii.Whether the High Court or the Magistrates' Court has the proper pecuniary and subject-matter jurisdiction to hear and determine a claim involving both a breach of contract valued at KES 2,000,000 and copyright infringement.iii.Whether the plaintiff’s claim represents a genuine constitutional and Bill of Rights enforcement action. 36.A preliminary objection must consist of a pure point of law which, if argued as a preliminary point, may dispose of the entire suit. 37.This was authoritatively established by the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, which cautions that an objection should not be blurred by a contest of facts or require the court to look for evidence. 38.The challenge raised in the preliminary Objection relies strictly on statutory and constitutional interpretation regarding jurisdiction based on the face of the plaintiff’s pleadings, it qualifies as a legitimate preliminary objection. 39.Furthermore, as the Court of Appeal held in the locus classicus case of Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything, and once a court's capacity to hear a matter is challenged, it must determine that issue immediately. 40.To determine whether this court has jurisdiction, we must examine the specific statutory framework governing civil claims and intellectual property in Kenya. 41.The defendant rightly notes that Section 7(1) of the Magistrates’ Courts Act, 2015 grants Resident Magistrates jurisdiction to hear civil claims up to KES 5,000,000. 42.On its face, the plaintiff’s claim for KES 2,000,000 falls well within this pecuniary threshold. 43.Litigants should file suits in the lowest court competent to try them. Filing a standard KES 2,000,000 debt or breach of contract claim directly in the High Court violates this principle, 44.However, the plaintiff's suit is not just an ordinary debt collection; it explicitly alleges copyright infringement arising from the same commercial transaction. 45.While the defendant argues that copyright claims are ordinary civil matters routinely handled by magistrates within their pecuniary limits, the law dictates otherwise. 46.Under the Copyright Act, 2001, civil remedies for infringement must be pursued in a court of competent jurisdiction. 47.Specialized intellectual property claims, including copyright infringement, are systematically designated to the High Court (specifically the Commercial and Tax Division) rather than subordinate courts, irrespective of the monetary value of the underlying transaction. 48.A magistrate's court does not possess the inherent or statutory subject-matter jurisdiction to grant final injunctions or statutory damages for copyright violations. 49.Therefore, because the contract and the intellectual property claims are intertwined and stem from the same transaction, separating them would lead to an impermissible splitting of claims. The High Court remains the proper forum to handle the copyright aspect of the suit. 50.The final issue is on the plaintiff's invocation of the Bill of Rights to defend the High Court's jurisdiction. 51.The plaintiff relies heavily on Sections 8(2) and 8(3) of the Magistrates’ Courts Act, 2015 to argue that subordinate courts cannot award compensation for Bill of Rights violations. 52.The plaintiff also relies on Royal Media Services Ltd v Attorney General & 6 others [2014] eKLR to assert that magistrates cannot enforce fundamental rights. On this point, the defendant’s argument is legally sound. 53.The plaintiff has not filed a constitutional petition under Articles 22 and 23 of the Constitution; they have filed an ordinary civil plaint seeking damages for breach of contract and copyright infringement. 54.Litigants cannot simply inject constitutional terminology into a standard commercial disagreement to force their way into the High Court. 55.Consequently, the plaintiff's arguments regarding Section 8 of the Magistrates' Courts Act are entirely misplaced because this is not a Bill of Rights enforcement proceeding. 56.Nevertheless, even though the plaintiff’s constitutional arguments are rejected, the defendant's preliminary objection must fail on the question of subject-matter jurisdiction. 57.The presence of the copyright infringement claim anchors the suit firmly within the domain of the High Court. 58.The High Court possesses unlimited original jurisdiction under Article 165(3) of the Constitution, and while it must respect statutory hierarchies for ordinary civil claims, it cannot divest itself of a matter where a primary component, intellectual property infringement, demands High Court adjudication. 59.Forcing the plaintiff to file the contract claim in the Magistrates' Court and the copyright claim in the High Court would result in a multiplicity of suits based on the exact same facts, which is contrary to the principles of judicial economy and the overriding objective of the law. 60.The High Court is the only forum fully competent to hear and determine the copyright infringement claim alongside the connected breach of contract claim and therefore it has proper jurisdiction over the entire suit. 61.The defendant’s Notice of Preliminary Objection dated 17th September 2025 is hereby dismissed. 62.The costs of this preliminary objection shall abide by the outcome of the main suit. 63.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026ASENATH N. ONGERIJUDGEIn the presence ofMr Mariba for Miss Kibare for the Plaintiff.No appearance for the DefendantChrispin - Court Assistant