[2023] KEHC 23372 (KLR)

V-Line Services v RJ Varsani Enterprises Ltd; Egoli Estates Limited (Interested Party) (Civil Case E163 of 2023) [2023] KEHC 23372 (KLR) (Commercial and Tax) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23372 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E163 of 2023

A Mabeya, J

October 12, 2023

Between

V-Line Services

Plaintiff

and

RJ Varsani Enterprises Ltd

Defendant

and

Egoli Estates Limited

Interested Party

Ruling

1. The plaintiff filed an application dated 18/4/2023 pursuant to article 50(1) and 159(2) of the Constitution, sections 1A, 1B, 3A & 63 of the Civil Procedure Act and order 28 & 51 of theCivil Procedure Rules.

2. The Plaintiff sought an order to issue a commission to Eng. Denis Malowa Okello to inspect all that property known as Egoli Premiere located on L.R No. Dagoretti/Riruta 3095 and to thereafter issue a report on the totality of the electrical works undertaken and an order to the proprietor of L.R No. Dagoretti/Riruta 3095 to facilitate the Commissioner’s access for the purpose of inspection.

3. The application was based on the grounds that the Plaintiff was a sub-contractor carrying out electrical works on the residential apartments known as Egoli Premiere situated on all that property known as L.R No. Dagoretti/Riruta 3095 and that the plaintiff carried out all electrical works on the said premises which was duly handed over to the client on 9/11/2022.

4. That a dispute arose between the plaintiff as the electrical sub-contractor and the defendant, as the main contractor, which required a report to be produced as to the scope of the electrical works carried out on the apartments.

5. The plaintiff is apprehensive that unless inspection is carried out, the scope of works may become indeterminable due to secondary works being undertaken on the premises.

6. In opposition to the instant application and suit, the Interested Party filed a Preliminary Objection (P.O) dated 2/5/2023.

7. The Interested Party argued that this court lacks pecuniary jurisdiction to determine this suit and application by dint of section 7 of the Magistrates Act. That the plaintiff’s application is fatally defective as leave to join the Interested Party was not obtained.

8. That the entire suit is premature and cannot be heard as a notice of intention to sue has not been served upon the Interested Party and that the instant application is not premised on a substantive suit against the Interested Party and as such lacks foundation and the court has no jurisdiction to entertain it.

9. Based on the grounds on its P.O, the Interested Party prayed that the suit be struck out with costs.

10. I will consider the merits of the P.O first as it has the potential to dispose of the entire application.

11. The Interested Party submitted that under section 7 of the Magistrates’ Court Act 2015, the Magistrate’s Court has jurisdiction to entertain disputes in which the value of the subject matter does not exceed Ksh.20 Million shillings. That therefore, the present suit in which the subject matter is Kshs.14,240,951. 11 ought to have been filed before the Chief Magistrate’s Court.

12. On this issue, the plaintiff submitted that the amount due on the total works done at paragraph 25 of the plaint amounted to Kshs. 24,743,771. 11 which automatically vests this Court with jurisdiction therefore the Magistrate’s court would not have the jurisdiction to hear and determine the matter.

13. Under section 7 of the Magistrate’s Act, the Chief Magistrates Court, which is the highest Magistrates court, has a pecuniary limit of Kshs. 20,000,000/- in civil suits.

14. I have analyzed the said plaint. Under paragraph 25 thereto, the plaintiff claimed that it carried out work worth a total of Kshs.24,743,771. 11 for the scope of works it had done. Under paragraph 28, the Plaintiff states that it had received a total of Ksh.10,502,820/= from the defendant for the said work. Therefore, under paragraph 29 and 30 of the plaint, the plaintiff claimed Kshs.14,240,951. 11 from the defendant which it states the defendant had refused to pay to it on a quantum meruit for the works done on the premises.

15. Although the amount claimed is Kshs.14,240,951. 11, the inspection and report sought is for the entire works carried out bey the plaintiff. On that basis alone, the PO has no basis and is struck out. In any event, if I had found that the matter fell in the jurisdiction of the Magistrates Court, all I could have done was to transfer the same to that court for hearing and determination.

16. On the issue that no leave had been granted to join the interested party, I find that to be a non-serious issue. Its joinder is for the purposes of compliance with the orders sought. It is a party that has an interest in the subject matter of the suit. It is the owner of the suit property.

17. Accordingly, the PO is without merit and is therefore stuck out with costs.

18. On the merit of the application, the defendant admits that it entered into a sub-contract for the construction works at the subject property. However, its contended that the works were for Kshs.10,832,519/40, which had been paid, and no more. That if there were other works that were, done, it was on the plaintiff’s own volition

19. My view is that, whether the works contracted for or not was for Kshs. 10, all the plaintiff wants is for the works that were executed by it to be measured. Why would the Client and the defendant object to the works to be measured? What do both want to hide? Wouldn’t it be beneficial for all to establish the extent of those works at this stage rather than wait at the trial when they would have been distorted?

20. The view I hold is that, the plaintiff has established a case to warrant the grant of the orders sought.

21. Accordingly, I find the application to be meritorious and I allow the same as prayed.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF OCTOBER, 2023. A. MABEYA, FCIArbJUDGE