Michael Moragia Nyachae v Sansora Bakery Limited

2. The preliminary objection was canvassed by way of written submissions. Claimant’s Submissions 3. The Claimant submits that this Court lacks jurisdiction to determine the matters pleaded at paragraphs 20 and 21 of the Counterclaim concerning the alleged sale of land belonging to M/S Sansora Bakers and Confectioneries Ltd. He asserts that disputes concerning land fall within the jurisdiction of the Environment and Land Court, while disputes arising from the sale agreement are the preserve of the High Court. The Claimant further submits that paragraphs 22 and 23 concern rent payable in respect of Kisii Municipality Block 111/101, occupied by M/S Upfront Booksellers and Stationers Ltd which fall under the jurisdiction of the Business Premises Rent Tribunal. 4. As concerns paragraphs 24, 25 and 34 concerning a PayBill account allegedly procured in the name of M/S Sansora Group Limited and the alleged fraudulent receipt of its monies. The Claimant submits that they are within the realm Page 2 of 6

page 2 of 6

of criminal law. Moreover, it contends that Sansora Group Limited is not a party to this suit neither is it his employer. 5. Finally, the Claimant submits that the Counterclaim is defective for failure to join the persons and entities against whom substantive and adverse allegations have been made, namely M/S Sansora Bakers & Confectioners Ltd, Jamaludin Shasudin Alibhai Rajwani, M/S Sansora Group Limited, M/S Upfront Booksellers and Stationers Ltd, Daniel Kengara and Development Bank of Kenya. for this reason, he asserts that the counterclaim is non-suited due to non-joinder and should be dismissed with costs. Respondent’s Submissions 6. On its part the Respondent submits that the Preliminary Objection raises no pure point of law, but instead raises factual issues concerning the matters pleaded in the Counterclaim. It maintains that the Counterclaim arises from the Claimant’s actions during his employment which allegedly occasioned loss and damage to the Respondents, for which they seek damages, and does not raise issues that are subject to another court or tribunal’s jurisdiction. Page 3 of 6

page 3 of 6

7. The Respondent submits that the fact that the Claimant has filed documents and a further witness statement in response to the Counterclaim demonstrates that the matters raised are factual and can only be determined upon hearing evidence. Reliance is placed on Pontrilas Investments Limited v Central Bank of Kenya & another, Reference No. 8 of 2017, where the East African Court of Justice held that a preliminary objection cannot properly be taken where determination assessment requires of production testimony, as of such evidence matters and require substantive adjudication on the merits. 8. On non-joinder, the Respondents submit that the objection has no basis in law. They contend that there is no requirement to join the persons or entities identified by the Claimant since the Counterclaim is founded on the Claimant’s own actions as an employee of the Respondents, which they intend to prove at the hearing. Consequently, the Respondent urges the court to dismiss the Preliminary Objection with costs. Page 4 of 6

page 4 of 6

Disposition 9. The amendments made to the defence include a counterclaim a raft of whose reliefs are for another forum. They relate to lease of property, under value of property space let out and even a purported fraudulent sale of property belonging to entities that are not before this Court. Whereas the conduct of the Claimant would be material in a suit where he seeks relief against the Respondent, it would be in the interests of justice if the counterclaim focused only on the claims competent for this Court to handle. There would be need for the Respondent to amend its counterclaim and accordingly I strike it out albeit with no order as to costs. A counterclaim solely in respect of the employment dispute may be filed within 14 days of today. Fraudulent acquisition of company property can be framed in a way that fits within the confines of Article 162(2) of the Constitution of Kenya and the Employment Laws in Kenya. It is so ordered. Dated and delivered at Kisii this 29th day of September 2026 Page 5 of 6

page 5 of 6

Nzioki wa Makau, MCIArb. JUDGE Page 6 of 6

page 6 of 6