Discount Capital Limited v Amber Medical Clinics Ltd & 1 other

4. The matter proceeded by way of written submissions. The Defendant filed their submissions dated 15th August 2025, while the Plaintiff filed submissions dated 29th August 2025. Analysis & Determination 5. I have carefully considered the pleadings, the rival submissions, and the authorities cited. The issue for determination is whether the Preliminary Objection is meritorious. 6. The Defendant submitted that this suit ought to have been filed before the Magistrates’ Court since the claim involves a loan of Kshs.6,500,000 and a restructured loan of Kshs.9,822,451, which fall within the pecuniary jurisdiction of the Magistrates’ Court under Section 7 of the Magistrates’ Courts Act, which is capped at Kshs.20 million. It was further contended that the Plaintiff’s principal claim of Kshs.18,079,929 is below that threshold, and therefore the High Court lacks jurisdiction. 7. Conversely, the Plaintiff submitted that the claim of Kshs.18,079,929 was exclusive of accruing contractual interest and general damages, which, when computed, may exceed Kshs. 20 million, thus falling within this Court’s pecuniary jurisdiction. The Plaintiff further contended that the unpaid loan continues to attract interest, increasing the total quantum of the claim. 8. From the pleadings, I note that the Plaintiff’s plaint dated 14th October 2024 seeks the following reliefs: - 9. i. The sum of Kshs.18,079,929 being the amount disbursed to the 1st Defendant together with interest as at 20th September 2024; ii. General damages for breach of contract, consequential loss of investment, and costs incurred in pursuing repayment; iii. Interest on (i) and (ii) above at 6.3% per month from 20th September 2024 until payment in full; iv. Costs of this suit; and v. Any other relief that this Honourable Court may deem fit to grant. The nature and scope of a preliminary objection is as defined in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 that: “ .... A preliminary objection consists of a pure 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." 10. Similarly, in the case of Oraro v Mbaja [2005] eKLR 141, Ojwang J (as he then was) elaborated that: “ A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with 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 and 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 objection; 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16570/eng@2025-10-21 2

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9. In the present case, while the Plaintiff claims Kshs 18,079,929, the total value of the subject matter, inclusive of general damages and continuing interest at 6.3% per month, cannot be ascertained at this stage without the aid of evidence. It is therefore not possible to conclusively determine the pecuniary value of the claim from the pleadings alone. 10. The factual contentions raised by the Defendant concerning the exact quantum of the claim are not admitted by the Plaintiff, and thus require evidentiary proof. Consequently, the objection fails to meet the test of a pure point of law as set out in Mukisa Biscuit (supra). 11. Even assuming arguendo that the claim falls below this court’s pecuniary jurisdiction, this Court’s jurisdiction cannot be ousted on that account. Article 165(3) of the Constitution of Kenya, 2010 vests in the High Court unlimited original jurisdiction in civil and criminal matters. This position was aptly afirmed in Interactive Gaming & Lotteries Limited v Safaricom Limited (Commercial Civil Case E684 of 2021) [2021] KEHC 335 (KLR), where Majanja J, quoting Dr. Selina Vukinu Ambe v Ketan Shashikant Khatri [2020] eKLR, held that the High Court’s jurisdiction, being constitutional, cannot be limited by statute or procedural rules regulating the filing of suits. The learned Judge stated that: “ In this respect I agree with the observations of Githua J. in Dr Selina Vukinu ambe vs Ketan Shashikant Khatri NRB HCCC No. 171 of 2018 {2020} e KLR, where the court stated as follows: "(16) The other objection taken by the Defendant is that the suit ought to have been filed in the Magistrates' court which has jurisdiction to hear and determinе the Plaintiff's claim and not in the High Court. While I agree with the Defendant that Section 11 of the Civil Procedure Act requires that a suit should be filed in the court of the lowest grade competent to try it, this provision in my view cannot be used to challenge the civil jurisdiction of the High court to entertain and determine suits filed before it. Besides the fact that the provision clearly regulates the filing of suits in subordinate courts, it is pertinent to note that the jurisdiction of the High Court is derived from the Constitution of Kenya 2010 which at Article 165 (3) confers on the court unlimited original jurisdiction in both criminal and civil matters. (17) With reference to the matters at hand, this means that the High Court is constitutionally mandated to hear and determine all civil suits irrespective of their nature or the value of the subject matter. The High Court's jurisdiction being a creature of the constitution which is the supreme law of the land cannot be limited or fettered by any other written law including the Civil Procedure Act. In my view, any statute that would purport to limit the High Court's jurisdiction as conferred by article 165 (3) would to that extent be unconstitutional by virtue of Article 2 (4) of the Constitution.” 12. I respectfully concur with that reasoning. The High Court’s jurisdiction emanates directly from the Constitution, and cannot be restricted by statutory provisions concerning pecuniary limits applicable to subordinate courts. Disposition 13. From the foregoing, I find that the Preliminary Objection dated 19th March 2025 is not merited since it raises factual issues that require evidentiary determination. Accordingly, the same is hereby dismissed with costs to the Plaintiff. 14. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 21ST OCTOBER 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16570/eng@2025-10-21 3

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ADO MOSES JUDGE In the presence of: C/A – Moses Omamo…………..for the Plaintiff Musyoka……..... for the Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16570/eng@2025-10-21 4

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