Moses Richard Owuor T/A Strikes Fry’s N Chicks & 1 other v Mary Wanjiru Irungu

issue of jurisdiction, the plaintiffs argue that they have invoked the jurisdiction of the High Court under Articles 22 and 165(3) of the Constitution to enforce their fundamental rights freedoms and social economic rights which are issues that cannot be addressed in the magistrates’ court or the rent restrictions tribunal. The Law Whether the preliminary objection is sustainable. 5. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:….. 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. 6. Sir Charles Newbold P. stated: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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop. 7. Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held 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. 8. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. 9. It is trite law that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. 10. The respondent argues that the court does not have jurisdiction to entertain the suit as the value of the subject matter is Kshs. 12 million which falls within the ambit of the magistrates court and the facts in dispute are between a landlord and tenant which falls ought to have filed in the Rent Restrictions Tribunal. 11. The law on the question of jurisdiction was enunciated in the case of Owners of the Motor Vessel “Lilian S” vs Caltex Kenya Limited [1989] KLR 1 where the court held:Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19771/eng@2025-06-12 2

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other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 12. On the source of jurisdiction, it was held in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & Others (2012) eKLR that:A court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 13. Section 7 of the Magistrates Court Act provides:1. A magistrate’s court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceeda. Twenty million shillings, where the court is presided over by a chief magistrate; b. Fifteen million shillings, where the court is presided over by a senior principal magistrate; c. Ten million shillings, where the court is presided over by a principal magistrate; d. Seven million shillings, where the court is presided over by a senior resident magistrate; or e. Five million shillings, where the court is presided over by a resident magistrate. 14. On perusal of the plaint dated 12th February 2024, the plaintiffs are tenants in the defendant’s business premises situated in Makongeni Thika whereby they run their business, Strikes Frys n Chicken. The monthly rent of the premises is Kshs. 25,000/-. The orders sought in the plaint are damages at the sum of Kshs. 12 million, general, exemplary and punitive damages for pain and suffering, mental distress and anguish, incurable inconveniences, sufferings, business embarrassment, humiliation, ethnic profiling and clinical therapy and a refund of their rent security of Kshs. 150,000/-. I have further perused the plaint and noted that the matter is a civil suit and the plaintiffs have in paragraph 65 stated that they invoked the jurisdiction of this court to enforce their fundamental rights and freedoms. It is noted that the plaintiffs have not sought any declaration that their constitutional rights were violated or infringed in the plaint. The value of the subject matter in this case is KSh.12,150,000 which is way below the jurisdiction of this court. 15. On a close look at the plaint, the plaintiffs purport to seek for declarations which are in fact not violations of any constitutional rights. The substance of the plaint is that this is a civil suit that is wrongly worded and ought to have been filed in the Chief Magistrate’s court for it falls within the pecuniary jurisdiction of that court. What it is now is a civil suit clothed with landlord and tenancy relationship but in effect remains a claim that is within the ambit of a civil court. 16. In my considered view, this suit is misconceived and incompetent. The plaintiff have a chance of reconsidering their claim and filing it in the right court. 17. The suit is struck out for being incompetent and being improperly before this court. 18. The defendants shall have the costs of the preliminary objection and for any other incidental costs. 19. It is hereby so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19771/eng@2025-06-12 3

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RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19771/eng@2025-06-12 4

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