https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8733

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E148 OF 2024** **VICTOR OTIENO ONYANGO……..……………....……..APPELLANT** **-VERSUS-** **CHINA CHITY CONTRUCTION** **{GROUP} COMPANY LIMITED.…………..……………RESPONDENT** **(*Being an Appeal from the Judgment of Hon. Maureen Nyigei delivered on the 8th July, 22024 in the Original Kisumu CMCC 340 of 2019)*** ***JUDGMENT*** **Introduction** 1. The Appellant has filed this Appeal against the ruling and orders of the Honourable Maureen Nyigei (PM), delivered on 8th July 2024 in Kisumu CMCC No. 340 of 2019, striking out the suit for want of jurisdiction. 2. The matter had proceeded with the hearing and the Plaintiff had closed its case. When it got to defense hearing, the defense witness in his testimony indicated that the cause of action arose on 19th November, 2018, at the defendant’s workshop situated at Nyangela in Rachuonyo in Homabay County. This prompted the trial Magistrate to ask the parties whether the court in Kisumu had territorial jurisdiction to handle the suit. 1. In response, the Plaintiff who is now the Appellant stated that since the parties had been proceeding before the court and the issue of jurisdiction had never been arisen until the court raised it *suo motu*, and for expeditious disposal of the case, the Plaintiff ought to be allowed to proceed. 2. The Defendant who is now the Respondent was of the view that if the court found that it had no jurisdiction, it was upon the Plaintiff to withdraw the case and file it at the place it ought to have been filed. 3. The court reserved a ruling on the matter and on the 8th July 2024, pronounced itself directing that it had no jurisdiction and consequently struck out the suit. 4. Dissatisfied with the orders of the court, the Appellant has now filed the present Appeal and put forward five (5) grounds as follows:- 1. *The Learned Trial Magistrate erred in fact and law to hold that whereas the Plaintiff's case had been taken, the Honourable Court lacked jurisdiction only by the fact that the defendant stated the cause of action arose at Homa Bay, Rangala even before the said witness could be examined thus overstepping her mandate.* 2. *The Learned Trial Magistrate erred in fact and law when she entered into the realm of examination of the witness before even clear evidence could be led and adduced towards the true place of abode of the Defendant/Respondent thereby arising to a misleading position that the Respondent resides outside her territorial jurisdiction.* 3. *The Learned Trial Magistrate erred in fact and law that despite acknowledging the proper and correct provisions of Section 15 of the Civil Procedure Act, she went ahead to arrive to a conclusion that the evidence that was about to be led by DW1 controverted the fact that the respondent had satellite offices spread within the Republic of Kenya with the principal office at Oyugis.* 4. *The Learned Trial Magistrate erred in fact and law to pre-empt the evidence of DW1 which was incomplete and yet to be admitted ready for further examination whereas nothing to the effect of the ruling was ever raised at the preliminaries of the pre-trials to the hearing.* 5. *The Learned Trial Magistrate erred in law to hold that the suit as filed offends the provisions of Section 14 and 15 whereas the same had not been led by the respondent thus causing a miscarriage of justice.* **Appellant’s Submissions** 1. The Appellant submitted that the Learned Trial Magistrate erred in law and fact in declining jurisdiction. That the Magistrate allowed herself to descend into the arena of conflict by raising the issue of jurisdiction whereas the parties had proceeded with the matter. In particular, the Appellant submitted that the trial Magistrate did not even allow the defendant to be cross examined on the issue of jurisdiction to establish that the defendant has satellite offices all over the Republic of Kenya and the head office in Oyugis. 2. Further, the Appellant submitted that they filed the suit under Section 14 of the Civil Procedure Act and that the trial Magistrate had misapplied and misinterpreted Section 15 of the Civil Procedure Act. 3. In any event, the Appellant submitted that the court should be guided by the provisions of Article 159 (2) of the Constitution which stipulates that justice shall be administered without undue regard to technicalities. **Respondent’s Submissions** 1. The respondent submitted that the trial court properly directed itself on both the law and the facts, and arrived at the correct determination. On the law, the Respondent submitted that jurisdiction is not a procedural technicality. It is substantive and goes to the root of the court’s authority. That the settled position is that a court without jurisdiction must down its tools immediately and that jurisdiction is a matter of law, not merely pleading. That a court may raise and determine the question of jurisdiction *suo motu* where it becomes apparent that it may lack jurisdiction and failure by a party to formally plead jurisdictional objection does not confer jurisdiction where none exists 2. The Respondent submitted that the trial court evaluated the material before it and found that the Plaintiff indicated his postal address as P.O. Box 112 - 40222, Oyugis, and that the cause of action arose at Rangala, Homa Bay County, and on that basis, the court correctly found that it lacked territorial jurisdiction. 3. On the trial Magistrate raising the issue of jurisdiction before the cross examination of the defense witness, the Respondent submitted that jurisdictional questions can be raised at any stage of proceedings, even on appeal, and once raised, it must be determined forthwith. That the court is under a duty to satisfy itself that it has jurisdiction before proceeding further. The Learned Magistrate therefore did not “overstep her mandate” but rather fulfilled a legal obligation. **Analysis and Determination** 1. It is not in dispute that the claim herein is one for compensation for injuries arising in the course of employment. The Appellant had been employed by the Respondent and the employment contract is part of the Record of Appeal (pg 26–33 of the Record of Appeal). 1. According to the contract document, the Appellant is from Soin Subcounty in Kericho County, while the Respondent’s office was in Kasimba in Oyugis. The head office of the Respondent is on Lenana Road in Kilimani, Nairobi. 2. The Appellant’s Appeal is that they had filed their case based on Section 14 of the Civil Procedure Act. The Section provides that; *where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business or personally works for gain within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the Plaintiff in either of those courts.* 3. The Appellant has also submitted on Section 15 of the Civil Procedure Act, which provides that *“subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction the Defendant actually and voluntarily resides or carries on business or personally works for gain; or the cause of action wholly or in part arises.* The Section further clarifies that “*in suits arising out of contract, the cause of action arises at any of the following places:* 1. *where the contract was made;* 2. *where the contract was to be performed or performance completed; or* 3. *where payment under the contract was expressly or impliedly payable.* 4. As stated hereinbefore, the subject matter of the Appeal is an employment contract. Being so, any disputes would be determined where the contract was made, performed, or where payment was to be made. The contract herein was made at the Respondents offices in Oyugis, the contract was to be performed in Oyugis and payments for the work done was of course to be made from the Respondent’s offices, that are situated in Oyugis. This would mean that in the instant case, any disputes would only be determined at Oyugis, or at most, at the defendant’s head office, in Nairobi where possibly the payments are processed from. 5. Even if the court was to go by the provisions of Section 14 of the Civil Procedure Act, the provision is for filing within the local limits of the court where the wrong was done, which in this case is Oyugis and the jurisdiction where the defendant resides or carries on business or personally works for gain, which again would be where the offices of the defendant are situated, which is Oyugis or the head office in Nairobi. So that whether the court goes by the provisions of Section 14 of the Civil Procedure Act or Section 15 of the Civil Procedure Act, then the Plaintiff’s place of suing should have been at Oyugis. 6. The Appellant has extensively submitted that the trial Magistrate erred in raising the issue of jurisdiction *suo motu* when the Plaintiff had closed its case and the parties had not raised the same. Jurisdiction is everything and the court must always ensure that it has the jurisdiction before embarking on hearing of the suits. In the case of **Owners of Vessel Lilian’s vs Caltex Oil Kenya Ltd (1989) KLR** it was held that *jurisdiction is everything and without it, the court has no power to make any step.* 7. The law is also settled on how the court can draw jurisdiction. In the case of **Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd vs & 2 Others, the Supreme Court in Civil Application Number 2 of 2011** stated that jurisdiction flows from the Constitution or legislation or both. The court continued to state that **“*a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law and that jurisdiction goes to the very heart of the dispute”.*** 8. It was therefore proper for the trial court to deal with the question of jurisdiction at any stage of proceedings, even before any of the parties had raised it. The court was under a duty to satisfy itself that it has jurisdiction before proceeding further and parties cannot confer jurisdiction on a court. 9. The Appellant also submitted that the question of jurisdiction is a mere technicality and to ensure that the suit is heard expeditiously, the court could excuse the Appellant. In the Supreme Court decision in ***Samuel Kariuki Macharia (Supra)*** the court held that ***“jurisdiction goes to the very heart of the dispute”.*** It cannot therefore be a technicality that is left to the discretion of the court as this would go against the statutory and constitutional edits. 10. My finding therefore is that the trial Magistrate did not err in finding that the court lacked jurisdiction, the cause of action having arisen at Oyugis, the contract having been entered into in Oyugis, and the defendant’s satellite office having been situated in Oyugis. 11. The upshot of the matter is that the Appeal herein is devoid of merit and is dismissed with costs to the Respondent. **Dated, delivered and signed virtually on the 19th day of June 2026 at Nairobi** **…………………………..………………** **L. M. WACHIRA** **JUDGE** In the Presence of: *Lindsy* – court assistant *Anyul……………………………………………* -for the Appellant *Miss Nyakundi for the ………………………………………….* -for the Respondent.