(Being an appeal from the judgment of Resident Magistrate/Adjudicator V.M. Mochache delivered on the 7th June 2024 in the Small Claims Court at Nairobi Milimani SCCCOMM No. E3852 of 2024)
1. The appellant seeks to overturn the decision in SCCCOMM No. E3852 of 2024 in Nairobi rendered on 7th June 2024 in the Small Claims Court. In the said case, the appellant brought a claim vide a Statement of Claim dated 15th April 2024 against the respondent seeking Ksh 409,211.54 and costs of the suit.
2. The respondent filed a response to the Statement of Claim dated 10th May 2024. In this response, the respondent denied the Claim in its entirety. The respondent also filed a Preliminary Objection to the claim on even date raising two grounds. Firstly, that the claimant’s suit relates to an employer-employee relationship and secondly that the Small Claims Court (SCC) is not vested with jurisdiction under section 12 of the Small Claims Court Act (SCC Act) to deal with the dispute filed by the claimant.
3. By a judgment delivered on 7th June 2024, the adjudicator upheld the Preliminary Objection and struck out claim with costs to the respondent.
4. Dissatisfied with this decision, the appellant filed this appeal vide the Memorandum of Appeal dated 28th June 2024. The appeal is premised on four grounds to wit:
(1) That the learned Adjudicator erred in law and fact in finding that there was a Preliminary Objection before her as the Preliminary Objection was not founded on a pure point of law;
(2) That the learned Adjudicator erred in law and fact by failing to consider the Appellant’s replying affidavit, further witness Statement, further list of documents and written submissions before her and relying solely one side’s arguments;
(3) That the learned Adjudicator was actuated by bias and descended into the arena of the dispute between the parties thereby constituting as an additional counsel for the respondent by failing to consider the Appellant’s replying affidavit, further witness statement, further list of documents and written submissions before her and descending into factual issues when what was before her was a Preliminary Objection; and
(4) That the learned Adjudicator erred in law and fact by failing to find that by the agreement from which the suit is predicated on is of commercial nature entered into way after the employment relationship between the appellant and the respondent had been terminated.
5. Consequently, the appellant sought for an order setting aside the ruling of the SCC at Nairobi, SCCCOMM E3852 of 2024 made on 7th June 2024 and all consequential orders flowing therefrom; that the matter be heard afresh before another adjudicator; that the costs of this appeal be provided for; that this court issues any other orders it deems fit to grant in the circumstances.
6. The appellant filed submissions dated 15th October 2024 to supports its cause. The respondent filed submissions dated 12th November 2024 in rebuttal.
7. The appellant urges that there are three issues arising for determination in this appeal. Firstly, whether the learned Adjudicator erred in law and fact in making a finding that there was a merited Preliminary Objection, secondly, whether the learned Adjudicator erred in law and fact in failing to find that the agreement from which the suit is predicated on is of a commercial nature and lastly whether the learned Adjudicator was actuated by bias in failing to consider the appellant’s replying affidavit, further witness statement, further list of documents and written submissions before her and by descending into factual issues when what was before her was a Preliminary Objection.
8. On whether the learned Adjudicator erred in law and fact in making a finding that there was a merited Preliminary Objection, it is submitted that the learned adjudicator delivered a ruling on the respondent’s Preliminary Objection without considering the appellant’s Replying Affidavit and written submissions.
9. It is submitted that the question on whether the SCC had jurisdiction to determine the appellant’s claim was one that required the adjudicator to question the veracity of facts in issue which in turn made the Preliminary Objection improper. To buttress this contention the applicant made reference to the decision in Oraro V Mbaja [2005] eKLR. Therefore, it is submitted that the learned Adjudicator erred in law and fact in making a finding that there was a merited Preliminary Objection.
10. On whether the learned Adjudicator erred in law and fact in failing to find that the agreement from which the suit is predicated on is of a commercial nature, it is the appellant’s case that it entered into a commercial agreement with the respondent on the 18th of February 2019 for the repayment of Ksh 409,211.54 that the respondent owed the appellant. The appellant contends that the respondent’s failed to honour the agreement leading to the cause in the SCC. Further that the commercial nature of the claim was explained in the Replying affidavit which the learned Adjudicator failed to consider.
11. On the last issue, it is submitted that despite the appellant filing its replying affidavit, further witness statement, further list of documents and written submission, the trial court stated that these were not filed and this is a clear demonstration of bias. The decisions in Rawal v Judicial Service Commission & another; Okoiti (interested party); International Commission of Jurists & Another (Amicus Curiae) (Civil Appeal (Application) 1 of 2016, [2016] KECA 717 (KLR) (11 March 2016) Ruling and Jasbir Singh Rai and 3 others v Tarlochan Singh Rai and 4 others (2003) eKLR are cited to reinforce this assertion.
12. The appellant concludes by contending that this appeal is merited and should be allowed with costs.
13. On the other hand the respondent submits that there are two issues for determination in this cause; whether the appellant’s appeal is merited; and who bears the costs of this appeal.
14. It is submitted that pursuant to Section 38 of the SCC Act, the appellate jurisdiction of the High Court is circumscribed solely to the determination of questions of law arising out of any decision made by the SCC.
15. It is urged that the SCC is designed to settle all disputes before it in a timely manner, while paying minimal regard to rules, formalities and technicalities common with other courts.
16. It is submitted that none of the four grounds of appeal listed by the appellant raise any questions of law. That all the grounds raise issues of fact and the appeal should therefore be dismissed. The decision in Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) is cited to fortify this contention.
17. On who bears the costs of this appeal, it is urged that the general rule on the award of costs is that costs follow the event. The respondent concludes by urging the court to award it cost should it find that the appeal lacks merit.
18. Having gone through the record and the parties’ submissions, the emerging issue for determination is whether there was a valid Preliminary Objection before the trial court.
19. As I deal with this issue, I am mindful that appeals from the SCC are governed by the provisions of Section 38 of the Small Claims Act which provides as follows:
38. Appeals
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.
20. The Supreme Court has binding precedent on what constitutes appeals on matters of law only. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition 2B of 2014 [2014] eKLR, the Court in paragraph 80 delivered itself as follows:
From the foregoing review of the comparative judicial experience, we would characterize the three elements of the phrase “matters of law” as follows:
(a)the technical element: involving the interpretation of a constitutional or statutory provision;
(b)the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
(c)the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.
The court went on to explain at paragraph 81 (c):
“the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.
The court went on at paragraph 81A :
81A.It is for the appellate Court to determine whether the petition and memorandum of appeal lodged before it by the appellant conform to the foregoing principles, before admitting the same for hearing and determination.
82.Flowing from these guiding principles, it follows that a petition which requires the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invites the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. We believe that these principles strike a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.(emphasis mine)
21. In Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal while referring to a second Appeal, which is essentially on points of law delivered itself thus: “This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse.
22. Similarly, in Wachira v Mwai (Civil Appeal E022 of 2023) [2024] KEHC 3173 (KLR) (15 March 2024) the Court held that at paragraph 4: -
“The jurisdiction of the Small Claims Court is set out in the Small Claims Court Act. Ipso facto, there is only one chance of Appeal to this court. It is an Appeal on points of law.”
23. Guided by the foregoing, this court carefully considered the Memorandum of Appeal as framed and finds that grounds 2, 3, and 4 of the Memorandum of Appeal relate primarily to the question of fact and evidence and not questions of law. The appellant is asking this court to review the evidence presented. The appellant is asking of me to re-examine the probative value of the evidence tendered at the trial Court, and is inviting this court to calibrate this evidence. In keeping with section 38 (1) of the SCC Act, this cannot be countenanced. As the aforestated grounds relate primarily to questions of fact, they do not qualify as grounds that can be determined on appeal. As such, I shall dismiss these grounds in limine.
24. Ground 1, however raises a matter of law. It is the appellant’s case that the Preliminary Objection in the trial court had no merit and therefore the trial Court’s decision was erroneous. This is disputed by the respondent who contends that the trial court properly upheld the Preliminary Objection and correctly determined that it had no jurisdiction.
25. The trial Court in its decision set out the test for determining a Preliminary Objection. It further went on to consider the provisions of section 13(5) of the SCC Act which excludes the SCC from determining matters founded on employment and labour relations. The trial court found that in order to make a just decision in this matter, it had to delve into the employment contract and interrogate issues relating to employment and labour relations which is outside the jurisdiction of the SCC. Based on this, it found the Preliminary Objection merited and struck out the claim with costs to the respondent.
26. To address the issue before court, it is important at this juncture to delve into what constitutes a Preliminary Objection.
27. A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696 to mean;
“So far as I am aware, 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”.
Further Sir Charles Nebbold, JA stated that:-
“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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
28. A Preliminary Objection raises a pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion or if they are contested. In Oraro…Vs…Mbaja (2005) 1KLR 141, the court held that: -
“Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.
29. It is trite that without jurisdiction, a court of law cannot purport to entertain any claim. (see Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989)).
30. Section 13 (5) of the SCC Act provides as follows:
“13. Exclusion of jurisdiction
…..
5. A claim shall not be brought before the Court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations.” (emphasis mine)
31. Going by this provision, the SCC Act is categorical that the SCC cannot determine matters if the cause of action is founded on employment and labour relations.
32. The trial court determined from the facts and evidence before it that the cause of action was founded on employment and labour relations. As such, it found it had no jurisdiction to entertain the matter. To this end, I am of the view that there was a valid Preliminary Objection before the trial court. Furthermore, I find that that trial Court stipulated the law excluding its jurisdiction and applied it correctly.
33. All is not lost however, because the appellant, should it so wish, can pursue its cause in the proper forum which is the Employment and Labour Relations Court. Consequently, I find no justification to interfere with the trial court’s decision dated 7th June 2024.
34. The upshot of this is that the Memorandum of Appeal dated 28th June 2024 is found to be without merit and the same is dismissed with costs to the respondent.
It is so ordered.
JudgmentCATHOLIC UNIVERSITY OF EASTERN AFRICA VS SAMUEL KARIUKI12 min read
CATHOLIC UNIVERSITY OF EASTERN AFRICA VS SAMUEL KARIUKI
High Court at Milimani High Court · · Rhoda Rutto