Masterfound Investments Limited v Maina & another (Civil Suit 358 of 2023) [2024] KEMC 156 (KLR)

The court restated the classic test from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd as adopted by Law JA and Newbold P, and the formulation in Oraro v Mbajja. A preliminary objection must be a point of law pleaded or arising by clear implication from the pleadings, argued on the assumption that the pleaded facts are true, and capable of disposing of the suit. It cannot be raised where facts must be ascertained or discretion exercised. The jurisdictional challenge here was held to satisfy this test.

Section 12 of the Small Claims Court Act limits the Small Claims Court's pecuniary jurisdiction to claims not exceeding Kshs. 1,000,000, including contract claims for money held and received, while section 7(1) of the Magistrates' Courts Act gives magistrates' courts jurisdiction up to Kshs. 20 million. The two courts therefore have concurrent jurisdiction. However, section 11 of the Civil Procedure Act requires suits to be instituted in the court of the lowest grade competent to try them unless a point of law or other sufficient reason is certified. The court held the Small Claims Court is the lowest grade competent court and found no point of law justifying the Chief Magistrate's Court.