Hon. Johnson Nduya Muthama v Friends Provident Life Assurance Limited & 6 others

2. The background of the matter is that the Plaintiff, Hon. Johnson Nduya Muthama, commenced this suit seeking to enforce, or recover damages for the breach of a contract (Policy Number 14489841) against seven Defendants, including the 1st, 2nd, and 4th Defendants, who are stated in the suit to be non-resident entities. The 3rd Defendant, Aylesfield [Kenya] Limited, is stated to be a Kenyan-based entity and, according to the Plaintiff, an agent for the 4th Defendant. 3. The background of the matter is that the Plaintiff, vide a plaint dated 21st December 2024, alleged that Defendants fundamentally breached their contractual obligations by failing, neglecting, and/or refusing to remit the surrender value of the policy, amounting to GBP 170,532.10, despite the Plaintiff submitting all requisite documentation. 4. The 1st, 2nd, and 4th Defendants are stated in the suit to be non-resident entities; hence, the present application by the Plaintiff for leave to serve summons upon the 1st, 2nd, and 4th Defendants. 5. Pursuant to this Court’s directions, parties filed detailed written submissions. The Plaintiff’s submissions are dated 25th April 2025, while those of the 4th Defendant are dated 15th May 2025. The 4th Defendant’s Submissions 6. In support of its Preliminary Objection, the 4th Defendant argued that the Plaintiff’s application is fatally defective, that it offends Order 5 Rules 21–25 of the Civil Procedure Rules, and that this Court lacks jurisdiction over a foreign defendant who has not been properly served. According to the 4th Defendant, the contract, the subject of this suit, is governed by the laws of the United Kingdom and hence this Court lacks the jurisdiction to grant the leave sought. 7. The 4th Defendant submitted that the Contract between the parties was made and performed in the United Kingdom outside the Jurisdiction of this Court, and therefore this Court lacks Jurisdiction over the same. In support of this argument, Counsel for the 4th Respondent cited among others the cases of Zanele Investment Holding Limited v Alexander Forbes Emerging Markets (PTY) Limited 2017KEHC3122(KLR) and Raytheon Aircraft Credit Corporation v Air Al-Faraj Ltd [2005] eKLR, where it was held that in relation to foreign defendants (as is the case herein), the Court is not to take jurisdiction unless the circumstances fall within the provisions of Order 5 Rule 21 of the Civil Procedure Rules. 8. The 4th Defendant argued that the suit against them is "stillborn" and incompetent, asserting that jurisdiction is not invoked unless the Summons is prompted in the manner provided by the rules, citing the general principle that mere knowledge of the suit is insufficient. The case of the Law Society of Kenya v Martin Day & 3others [2015] eKLR, was cited in support of this argument. 9. Counsel asserted that jurisdiction is everything, and where none exists, as is the case herein, then the court must down its tools. Plaintiff ’s Submissions 10. The Plaintiff opposes the Preliminary Objection on the basis that it does not raise a pure point of law, but rather involves contested questions of fact regarding where the contract was made, performed, and allegedly breached. 11. The Plaintiff contends that his application is properly anchored under Order 5, Rules 21 and 25, and that the Court is vested with jurisdiction to grant leave to serve foreign defendants where part of the cause of action arose in Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16530/eng@2025-10-23 2

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12. It was further submitted that the 4th Defendant has already entered appearance through its advocates, thereby submitting to the jurisdiction of this Court and rendering its objection unsustainable. 13. The Plaintiff further submitted that the cause of action arose in Kenya — payments were made in Kenya, and the 4th Defendant acted as an agent of the 1st and 2nd Defendants within Kenya. He relied on, inter alia, Oraro v Mbaja [2005] KLR 141, AMB Mining Ltd v Misnak International (UK) Ltd [2023] KEHC, and United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898. Analysis and Determination 14. I have carefully considered the rival submissions and the authorities cited therein. The issues that arise for determination are as follows: i. Whether the 4th Defendant's Preliminary Objection on lack of jurisdiction is merited. ii. Whether the Plaintiff has satisfied the legal requirements for the grant of leave to serve Summons out of the jurisdiction under Order 5 Rule 21 of the Civil Procedure Rules, 2010. Whether the 4th Defendant’s Preliminary Objection is merited 15. On preliminary Objection, the starting point is the oft-cited decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court stated that: “ a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….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 if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 16. Similarly, in Oraro v Mbaja [2005] KLR 141, Ojwang J (as he then was) cautioned that a Preliminary Objection must be based on a settled point of law and not on matters requiring proof. The Court stated that: “ A preliminary objection' correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point....Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...” 17. From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Further, a preliminary objection should possess the ability to dispose off the issue that is before court without going to trial, and lastly, the same ought to stem from pleadings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16530/eng@2025-10-23 3

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18. In the present case, the 4th Defendant’s objection is premised on the argument that there is no prima facie case against the 4th Defendant and that this Court lacks jurisdiction on the basis that the contract was allegedly executed outside Kenya and that the acts in question were done outside Kenyan territory, assertions denied by the Plaintiff. 19. The determination of whether the Plaintiff has a prima facie arguable case or whether Kenya is the forum conveniens are, in my view, mixed questions of fact and law that require reference to pleadings and affidavits, and is thus inappropriate for a Preliminary Objection. 20. Further, the question of whether the Court should grant leave to serve a foreign defendant under Order 5 Rule 21 is discretionary and fact-dependent, which requires examination of affidavits and the nature of the transaction — a process wholly inconsistent with the limited scope of a preliminary objection. 21. In the premises, I therefore find that the 4th Defendant’s Preliminary Objection failed herein raises mixed questions of law and fact and does not meet the threshold established in the Mukisa Biscuit case (supra). On this basis alone, the objection is improperly taken and is accordingly dismissed. Whether the Plaintiff Has Satisfied the Requirements for Leave to serve summons outside jurisdiction 22. The Plaintiff’s Application relies on Order 5 Rule 21(1) of the Civil Procedure Rules, 2010, which gives the Court discretion to grant leave to serve Summons out of Kenya. Specifically, the Plaintiff relies on sub-rule (1)(b), arguing that the non-resident Defendants are "necessary or proper parties to a suit properly brought against some other person duly served in Kenya" (the 3rd Defendant). Rule 21 provides as follows: “ Service out of Kenya of a summons or notice of a summons may be allowed by the court whenever— a. the whole subject-matter of the suit is immovable property situate in Kenya (with or without rents and profits); b. any act, deed, will, contract, obligation or liability affecting immovable property situate in Kenya is sought to be construed, rectified, set aside, or enforced in the suit; c. any relief is sought against any person domiciled or ordinarily resident in Kenya; d. the suit is for the administration of the personal estate of a deceased person who at the time of his death was domiciled in Kenya, or for the execution (as to property situate in Kenya) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Kenya; e. the suit is one brought to enforce, rectify, rescind, dissolve, annul, or other-wise affect a contract or to recover damages or other relief for or in respect of the breach of a contract—(i)made in Kenya; or(ii)made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya; or(iii)by its terms or by its legislation to be governed by the Laws of Kenya; or(iv)which contains a provision to the effect that any Kenya court has jurisdiction to hear and determine that suit in respect of that contract,or is brought in respect of a breach committed in Kenya, of a contract, wherever made, even though such a breach was preceded or accompanied by a breach out of Kenya which rendered impossible the performance of the part of the contract which ought to have been performed in Kenya; or f. the suit is founded on a tort committed in Kenya; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16530/eng@2025-10-23 4

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g. any injunction is sought as to anything to be done in Kenya, or any nuisance in Kenya is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or h. any person out of Kenya is a necessary or proper party to a suit properly brought against some other person duly served in Kenya.” 23. From the above, it is clear that Rule 21 of the Civil Procedure Rules permits service of summons outside Kenya “whenever” the suit falls within any of the specified categories — such as where the action is founded on a contract made, executed, or breached in Kenya, or where the foreign defendant is a necessary or proper party to the suit. 24. For the Court to exercise its discretion in favour of granting leave, the Applicant must satisfy a threepronged test: a) The claim must fall within one of the categories listed in Order 5 Rule 21. b) The Plaintiff must show that they have a prima facie arguable case. c) The Court must be satisfied that Kenya is the most appropriate forum to determine the dispute (forum conveniens). 25. The Plaintiff’s affidavit asserts that the insurance contract giving rise to the dispute was executed in Kenya, that the 3rd and 4th Defendants acted as agents of the 1st and 2nd Defendants within Kenya, and that the alleged breach — failure to remit the surrender value — occurred in Kenya. 26. These assertions are supported by documents annexed to the application, which have not been controverted by affidavit evidence from the Defendants. The 4th Defendant instead opted to file a preliminary objection instead of a replying affidavit. 27. It is therefore prima facie apparent that part of the cause of action arose within Kenya, and that the 1st, 2nd Defendants and 4th Defendants, being foreign insurers and/or agents, are therefore necessary parties to the suit. 28. Under Order 5 Rule 25, the Court may grant leave for service out of jurisdiction where the Plaintiff shows a good cause of action and discloses the grounds for such service. The Plaintiff’s affidavit satisfies these conditions. 29. In any event, Article 165(3)(a) of the Constitution vests in this Court unlimited original jurisdiction in civil matters, while Article 48 guarantees every person’s right of access to justice. It would therefore be unjust to shut out a litigant merely because the Defendants reside abroad, especially where the transaction was conducted in Kenya. 30. The Court of Appeal in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898 held that Kenyan courts have discretion to assume jurisdiction over agreements substantially made or performed in Kenya, notwithstanding foreign elements in the transaction. The Court was clear that: “ The courts of this country have a discretion to assume jurisdiction over an agreement which is made to be performed in Kenya notwithstanding a clause therein conferring jurisdiction upon the courts of some other country. The exclusive jurisdiction clause however should normally be respected because the parties themselves freely fixed the forums for the settlement of their disputes; the court should carry out the intention of the parties and enforce the agreement made by them in accordance with the principle that a contractual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16530/eng@2025-10-23 5

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undertaking should be honoured unless there is strong reason for not keeping them bound by their agreement.” 31. Similarly, in AMB Mining Ltd v Misnak International (UK) Ltd [2023] KEHC, the Court reaffirmed that jurisdiction over a foreign defendant is properly assumed upon leave and service of summons outside the jurisdiction. The Court stated that: “ The purpose of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction. The principles which govern the court in determining whether or not to grant leave are set out, though not exhaustively under Order 5 Rule 25 . . . Second, upon such leave being granted, the summons has to be served upon such defendant. It is only upon such service of the summons that a court assumes jurisdiction over a foreign defendant and not a moment sooner.” 32. Applying these principles, I am satisfied that the Plaintiff has demonstrated sufficient grounds to warrant the exercise of the Court’s discretion in granting leave. 33. In any event, it is evident from the record that the 4th Defendant, through Litoro & Omwebu Advocates, has already entered appearance in these proceedings. By so doing, it voluntarily submitted to the jurisdiction of this Court. Having invoked the Court’s jurisdiction, the 4th Defendant cannot approbate and reprobate by simultaneously challenging that same jurisdiction. Disposition 34. 35. For the reasons set out above, the Court makes the following Orders: i. The 4th Defendant's Preliminary Objection dated 4th March 2025 is hereby dismissed with costs to the Plaintiff/Applicant. ii. The Plaintiff's Application dated 19th February 2025 is hereby allowed. iii. Leave is hereby granted to the Plaintiff/Applicant to effect service of Summons together with the Plaint and the Application dated 19th February 2025 upon the 1st, 2nd, and 4th Defendants out of the jurisdiction of this Court. iv. The mode of service shall be by Registered Post and/or Courier Service to the last known principal place of business or registered address of the 1st, 2nd, and 4th Defendants in the United Kingdom as contained in the application. v. Service shall be deemed complete upon the delivery of the documents by the registered post/courier service to the respective addresses. The Plaintiff shall file an Affidavit of Service exhibiting the trackable dispatch and delivery receipts. vi. The Defendants shall have Forty-Five (45) days from the date of deemed service to enter appearance and file their Defences, failing which the Plaintiff shall be at liberty to proceed as permitted by law. vii. Costs of the Application dated 19th February 2025 shall be in the cause. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 23RD OCTOBER 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16530/eng@2025-10-23 6

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ADO MOSES JUDGE In the presence of: C/A – Moses …………..,,,,,,,,for the Applicant ……….…..... for the Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16530/eng@2025-10-23 7

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