P. Mulwa, J. v Nayna Maheshkumar Mehta & 1 other

HCCOMM NO. E827 OF 2025 P. MULWA, J. curtailed merely because a subordinate court may also have jurisdiction over the dispute. 4. The Preliminary Objection was canvassed by way of written submissions, which I have carefully considered together with the pleadings and the applicable law. 5. In my view, the sole issue falling for determination is whether the Defendant's Notice of Preliminary Objection is merited. 6. The principles governing preliminary objections are now well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated: “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.” 7. Sir Charles Newbold, P. added: “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 where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.” 8. It therefore follows that a valid preliminary objection must raise a pure point of law capable of disposing of the matter without the need for evidence or the exercise of judicial discretion. 9. The objection before me challenges the Court's jurisdiction. Jurisdiction is undoubtedly a pure point of law and may properly be raised by way of a preliminary objection. Page 2 of 5

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HCCOMM NO. E827 OF 2025 P. MULWA, J. Consequently, I am satisfied that the Defendant's objection meets the procedural threshold set out in the Mukisa Biscuit case. 10. The substantive question, however, is whether this Court lacks jurisdiction merely because the amount claimed falls within the pecuniary jurisdiction of the Chief Magistrate's Court. 11. The Defendant submits that since the claim is below Kshs. 20,000,000/=, the suit ought to have been filed before the Chief Magistrate's Court pursuant to section 7 of the Magistrates' Courts Act. While attractive at first glance, that argument overlooks the constitutional foundation of the High Court's jurisdiction. 12. The jurisdiction of the High Court is conferred directly by the Constitution. Article 165(3)(a) provides that the High Court shall have: “unlimited original jurisdiction in criminal and civil matters.” 13. This constitutional grant is neither qualified nor restricted by the pecuniary limits applicable to subordinate courts. 14. The proper inquiry is therefore not whether the Chief Magistrate's Court also possesses jurisdiction to hear the dispute, but whether the existence of that concurrent jurisdiction operates to divest the High Court of its constitutionally conferred jurisdiction. In my respectful view, it does not. 15. Section 7 of the Magistrates' Courts Act serves to expand the jurisdiction of subordinate courts by prescribing the monetary limits within which they may exercise civil Page 3 of 5

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HCCOMM NO. E827 OF 2025 P. MULWA, J. jurisdiction. It does not purport to limit or diminish the jurisdiction of the High Court. The statute is one of conferment upon subordinate courts, not one of restriction upon the High Court. Parliament cannot, through ordinary legislation, curtail jurisdiction that the Constitution has expressly vested in a superior court. 16. This position has received judicial affirmation. In Kavuludi v West FM Media Limited (West TV) & 3 Others [2025] eKLR. In that case the High Court rejected a similar objection founded on section 7 of the Magistrates' Courts Act, holding that a litigant cannot be denied access to the High Court merely because the value of the claim also falls within the pecuniary jurisdiction of the Chief Magistrate's Court. The Court recognized that the jurisdiction of the two courts is concurrent within the statutory monetary limits and that the availability of the subordinate court's jurisdiction does not extinguish the constitutional jurisdiction of the High Court. 17. There is, in any event, a further and independent reason why the objection cannot succeed. The Defendant's alleged liability as guarantor does not arise in isolation. It is founded upon an Arbitral Award dated 30th August 2023 which was subsequently recognized and adopted as a decree of this Court on 18th June 2025 in HCCOMM MISC. APPLICATION NO. E059 OF 2025. 18. The present proceedings are therefore inextricably connected to a decree already issued by this Court. In those circumstances, this Court is entitled to exercise its inherent jurisdiction under section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice Page 4 of 5

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HCCOMM NO. E827 OF 2025 P. MULWA, J. and to safeguard the integrity and effectiveness of its own decrees. Requiring the Plaintiff to institute separate proceedings before a subordinate court to enforce obligations flowing directly from a decree of this Court would unnecessarily fragment the litigation, encourage multiplicity of proceedings, and undermine the efficient administration of justice. 19. Ultimately, I find no legal basis upon which the unlimited original jurisdiction of the High Court under Article 165(3)(a) can be said to have been ousted by the concurrent pecuniary jurisdiction conferred upon the Chief Magistrate's Court under section 7 of the Magistrates' Courts Act. The existence of concurrent jurisdiction does not amount to an exclusion of the High Court's jurisdiction. 20. Accordingly, I find the Defendant's Notice of Preliminary Objection dated 18th December 2025 to be devoid of merit. It is hereby dismissed with costs to the Plaintiff. RULING delivered virtually, dated and signed at NAIROBI This 31st day of July 2026. PETER M. MULWA JUDGE In the presence of: Counsel for parties absent - though notified Court Assistant: Lispa Page 5 of 5

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