Erdemann Property Limited v Beatsyl Enterprise Limited

2. 5. That the appellant in forum shopping and has failed to exhaust the available remedies before the trial but to promote alternative disputes resolution contrary to the Constitutional Principle under Article 159(2)(c) requiring courts to promote alternative disputes resolution mechanism. 6. That the appeal is incurably defective incompetent and bad in law and amounts to an abuse of the court process intended to defeat execution, delay justice and undermine lawful authority of the trial court. 7. The proceedings before this court are a none starter. 8. The preliminary objection being on a fare point of law be heard and determine in lamine in accordance with the principles in Mukisa Biscuits Manufacturing Company Limited v West End Distributors Ltd (1969) EA 696. The Preliminary Objection was canvassed by way of written submissions. I have considered the preliminary objection. The issue for determination is whether the court has jurisdiction to entertain the application. I have considered the submissions. I find that the law is well settled that a preliminary objection must be based on a point of law which is agued on the basis that all facts are correct which when argued is likely to determine the appeal. What constitutions a preliminary objection was set out in the case of Mukisa Biscuits Manufacturing Company Limited v West End Distributors Ltd (1969) EA 696. Where the court held that: “ A preliminary objection constitutes of a point of law which has been pleaded or which arises by clear implications or pleadings and which if argued as a preliminary point may dispose off the suit. examples are objection to the jurisdiction of the court as 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 agued on the assumption that the facts pleaded by the other side are covered. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The Court of Appeal in Attorney general & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamuinjiga (2016) KECA 817 (KLR) held as follows on the test to be applied to determine whether the applicant’s preliminary objection met the threshold or not – “Is what Sir Charles Newbold set out above in the Mukisa Case (supra). That is first that the preliminary objection raises a pure point of law, second, that there is a demonstration that all the facts pleaded by the other side are correct, and third, that there is no fact that needs to be ascertained.” 3. The Supreme Court of Kenya in independent electoral & Boundaries Commissin v Cheperenger & 2 Others (2015) KESC7 2KLR held: “ …The true preliminary objection serves two purposes of merit: firstly, it serves as a shelf for the originator of the objection – against profligate deployment of time and other resources. And secondly it serves the public interests of sparing scarce judicial time so that it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to preliminary objection as a sword for mining a case otherwise destined to be resolved judicially and on merits.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19560/eng@2025-12-18 2

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4. The respondent in the present application has submitted that the appellant had filed a similar application in the small claims court like the one she has filed in this court and the court has not determine the application. The applicant submits that she moved to this court by way of an appeal after the small claims court declined to certify the appellants application dated 18/04/2025 as urgent and failed to grant any interim relief pending inter partes hearing. So, what is before this court is an appeal against the orders issued by the learned magistrate. 5. The issue that this court has to determine is whether the preliminary objection is based on a pure point of law. The court has to ascertain whether the adjudicator in the small claims court is dealing with similar application like present one. The appellant is seeking orders for stay of execution. The applicant has raised various matters of facts which this court has to ascertain. As well guided by the above cited decisions of the court of Appeal where the court has to ascertain facts, the issues cease to be points of laws. The applicant seeks orders that the court determines whether the learned adjudicator exercised discretion judiciously. 6. A party has the right to appeal to this court from decisions of the small claims court on points of Law. Section 38 pf the Small Claims Court Act provides: “ A person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of law. An appeal from any decision or order referred to in Section (1) shall be final.” 7. Excising that right is not an abuse of court processes. There are issues raised by the applicant like none service and concealment of material facts which required a response with an affidavit and not by raising a Preliminary Objection. For these reasons I find that what was raised as a preliminary objection does not meet the threshold of a preliminary objection. I find that the preliminary objection has no merits. That said, the applicant’s application is not opposed. The court has discretion to set aside ex-parte Judgment. The contention by the applicant that the respondent had filed multiple suits to circumvent the jurisdiction of the small claims court, that the respondent concealed material facts from the court. 8. These facts are not in dispute as the respondent did not file a reply to the application. The applicant raised a substantive issue that the default Judgment was irregular for want of service. In James Kanyita Nderitu & Another v Marios Philotas Ghukas & Another (2016) eKLR the court of Appeal asserted that an irregular default Judgment should be set aside ‘ex-debito Justiciae’ as a matter of right. The court exercise discretion set aside exparte Judgment where it is demonstrated that there are triable issues. 9. I find that the application dated 29/4/2025 has merits and is allowed. There shall be stay of execution of the default Judgment in SCC COMM Case No. 325/2024 pending the hearing and determination of the Appeal. 10. The proceedings in the small claims court be stayed pending the determination of the appeal. Costs in the cause. DATED, SIGNED AND DELIVERED AT KITUI THIS 18TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19560/eng@2025-12-18 3

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