[2020] KEHC 598 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 171 OF 2018

DR. SELINA VUKINU AMBE.......................................................................................PLAINTIFF

VERSUS

KETAN SHASHIKANT KHATRI.............................................................................DEFENDANT

RULING

1. In her plaint dated 20th July 2018, Dr. Selina Vukinu Ambe sued the defendant, Ketan Shashikant Khatri seeking inter alia general damages for defamation.

2. The plaintiff’s cause of action is premised on claims that both parties are residents of Greenpark Estate Cluster Three and members of the cluster’s WhattsApp Group; that on 19th May 2018 between 8:12pm and 8:13pm, the defendant using his mobile phone posted on the WhatsApp group the following texts in reference to the plaintiff:

“No Bullying….No one in cluster 3 has been served…shida kwa GEMS’’

But genuinely, I think it’s very unfair for 1 person to act like a b***h.”

3. According to the plaintiff, the content of the aforesaid posts was false, malicious and defamatory and greatly injured her character, image and reputation in the eyes of the public.

4. In his statement of defence filed on 6th September 2018, the defendant denied the plaintiff’s claim and put her to strict proof thereof. In paragraph 14 of the defence, the defendant specifically denied the jurisdiction of this court and averred that he will file a preliminary objection to contest the court’s jurisdiction at the earliest opportunity.

5. True to his averment, on 4th June 2019, the defendant filed a preliminary objection dated 15th April 2019 in which he sought that the plaintiff’s suit be struck out with costs on the following grounds:

i. That the magistrate courts have jurisdiction to competently hear and determine this matter and thus the suit ought to have been initiated therein.

ii. That both the plaintiff and defendant reside, and the alleged cause of action arose in Greenpark Estate, Athi River within Machakos County and thus the suit was instituted in the wrong jurisdiction.

6. In response to the preliminary objection, the plaintiff filed a replying affidavit sworn on 15th July 2020. She deposed that this court has the requisite geographical jurisdiction to entertain her claim as though the defendant resided in Greenpark Estate within Machakos County, he worked for gain in Nairobi.

Further, the plaintiff averred that the High Court was better placed to hear the suit because damages to be awarded if she succeeded in her suit may exceed the subordinate courts pecuniary jurisdiction.

7. By consent of the parties, the preliminary objection was canvassed by way of written submissions which both parties duly filed.

8. In his written submissions, the defendant denied the plaintiff’s claim that he worked for gain in Nairobi and claimed that he worked in Machakos County. Relying on Section 11of theCivil Procedure Rules, the defendant implored me to find that since it is not disputed that both parties lived in Greenpark Estate where the cause of action also arose, the suit should have been instituted in Mavoko Law Courts which was about 20 kms away from the estate.

9. On her part, the plaintiff submitted that the preliminary objection lacked merit as it was not based on pure points of law as defined in the celebrated case of Mukisa Biscuit Company V West End Distributors Limited, [1969] EA 696. She placed reliance on the persuasive authorities of Jane Wambui Weru V Overseas Private Inv Corp & 3 Others, [2012] eKLR and Atta (Kenya) Ltd V Nesfood Instrues Ltd, [2012] eKLR and asserted that the suit was properly instituted in this court because the High Court had unlimited civil and criminal jurisdiction and secondly, under Section 14of theCivil Procedure Act, a suit can be instituted in the court in whose jurisdiction the defendant either resides or carries on business or personally works for gain.

10. Having given due consideration to the points raised in the preliminary objection, the plaintiff’s response and the parties’ rival written submissions as well as the authorities cited, I find that the only issue which arises for my determination is whether the preliminary objection taken by the defendant is merited.

11. The law regarding what should constitute a preliminary objection is now well settled. In the celebrated case of Mukisa Biscuit Company V West End Distributors Limited, [supra], Sir Charles Newbold at page 701 defined a preliminary objection as follows:

“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 in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.”

12. The Supreme Court in Independent Electoral & Boundaries Commission V Jane Cheperenger & 2 Others, [2015] eKLRhas also pronounced itself on the same subject. The court expressed itself as follows:

“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.” [Emphasis added]

13. In this case, the preliminary objection consists of a jurisdictional challenge to the hearing of the plaintiff’s suit in this court on grounds that the suit ought to have been filed in the Magistrate’s Court at Machakos or the High Court in Machakos which are the courts with the requisite geographical jurisdiction to entertain the suit as the parties both reside in Green Park Estate within Machakos County where the alleged cause of action also arose.

14. The law governing institution of suits is set out in Section 11, Section 14 and Section 15 of the Civil Procedure Act (the Act). Section 11 applies to filing of suits in subordinate courts and provides that a suit should be instituted in the court of the lowest grade competent to try it but if it involves a point of law or for any other sufficient cause, a suit may be instituted in a subordinate court other than that of the lowest grade. Section 14 and 15 on the other hand envisages a situation where the cause of action arises in the geographical jurisdiction of one court and the defendant(s) resides, caries on business or personally works for gain in the geographical jurisdiction of another court. In such a situation, the plaintiff has an option of instituting suit in the court in whose jurisdiction either the cause of action arose or where the defendant resides, carries on business or works for gain.

15. In this case, the plaintiff has maintained that though the defendant resides in Green Park Estate which falls within Machakos County and the cause of action arose there, the defendant works for gain in Nairobi and that’s why she instituted her suit in Nairobi. As the defendant has denied that he works in Nairobi, it follows that the second limb of the defendant’s objection is premised on contested facts which would require to be ascertained through the process of calling evidence and it does not therefore meet the threshold of a preliminary objection as defined in law. In any case, the suit was filed in the High Court not in the magistrate’s court and as I will demonstrate shortly, the High Court has countrywide jurisdiction donated by the Constitution and is not bound by geographical boundaries.

16. The other objection taken by the defendant is that the suit ought to have been filed in the Magistrates’ Court which has jurisdiction to hear and determine the plaintiff’s claim and not in the High Court. While as I agree with the defendant that Section 11of theCivil Procedure Act requires that a suit should be filed in the court of the lowest grade competent to try it, this provision in my view cannot be used to challenge the civil jurisdiction of the High Court to entertain and determine suits filed before it. Besides the fact that the provision clearly regulates the filing of suits in subordinate courts, it is pertinent to note that the jurisdiction of the High Court is derived from the Constitution of Kenya 2010which atArticle 165 (3) confers on the court unlimited original jurisdiction in both criminal and civil matters.

17. With reference to the matters at hand, this means that the High Court is constitutionally mandated to hear and determine all civil suits irrespective of their nature or the value of the subject matter. The High Court’s jurisdiction being a creature of the constitution which is the supreme law of the land cannot be limited or fettered by any other written law including the Civil Procedure Act. In my view, any statute that would purport to limit the High Court’s jurisdiction as conferred by Article 165 (3) would to that extent be unconstitutional by virtue of Article 2 (4) of the Constitution.

18. The above notwithstanding, the High Court can on application or by its own volition evaluate the nature or subject matter of a suit filed before it and where it is satisfied that the suit can competently be tried in the subordinate court, the court can in the exercise of its supervisory jurisdiction transfer such suit to the lower court for hearing and final disposal.

19. I have studied the pleadings in this case and as noted earlier, the plaintiff’s claim is premised on the tort of defamation. Given the words or statements contained in the alleged defamatory posts and the forum in which they were allegedly published, I agree with the defendant’s submission that even if the plaintiff were to succeed in her suit, it is highly unlikely that she would be awarded damages exceeding KShs.20,000,000 which is the pecuniary jurisdiction of the lower court.

20. In view of the foregoing, my take is that the defendant ought to have approached this court with an application seeking transfer of the suit from this court to the lower court instead of challenging the court’s jurisdiction to entertain the suit which challenge, as demonstrated above is misconceived.

21. The above notwithstanding and considering that this court is enjoined by the Constitution of Kenya 2010 to embrace substantive justice and to lay less emphasis on procedural technicalities, having found that this is a suitable case for trial by the Magistrate’s Court which is one of the arguments that was advanced in support of the preliminary objection, I am inclined to exercise my supervisory jurisdiction and transfer this case to the lower court for hearing and final disposal.

22. Since at this stage it is impossible to determine as a fact whether the defendant works for gain in Nairobi or Machakos, since the suit was filed in Nairobi on the basis of a claim that the defendant works for gain in Nairobi, I invoke my supervisory jurisdiction and transfer this case to the Chief Magistrate’s Court at Milimani for hearing and determination.

23. Costs follow the event and are at the discretion of the court. Given the outcome of the preliminary objection, I will not make any order as to costs. Each party shall bear his/her own costs.

DATED, SIGNED andDELIVERED at NAIROBIthis 10th day of December 2020.

C. W. GITHUA

JUDGE

In the presence of:

Mr. Orenge for the plaintiff

No appearance for the defendant

Ms Mwinzi: Court Assistant