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1. I have considered the Preliminary Objection dated 22nd August, 2024 together with the submissions of the parties and the applicable law. The basis of the objection is that this court has no jurisdiction over the present suit because the loan advance to the Defendants is governed by Sharia Law.
2. Article 165(3) of the Constitution states that the High Court has unlimited original jurisdiction in criminal and civil matters. The Plaintiff relied on the above provision and urged the court to proceed to adjudicate the dispute between the parties herein.
3. The argument by the Defendants, on the other hand, was simply that based on Islamic Law, this Court does not have the jurisdiction, and it should refer the matter to to a committee of experts to be formed in accordance with the provisions of the Quran. Counsel clarified that this argument would apply to any facility offered by any Bank in Kenya, so long as the terms of that loan are governed by Islamic law.
4. I have considered the above and I am not persuaded. The argument advanced by the Defendants would effectively, if upheld, oust the jurisdiction of the court in relation to every facility based on Islamic legal principles. Such a decision would deter banks from offering such facilities and deprive the Muslim community from accessing loans that comply with their faith. Further, the argument that the matter ought to be referred to a committee of experts has no basis in law. The argument is untenable and is dismissed.
5. Further, it is not a disputed fact that that the agreement executed by parties expressly provides that the Plaintiff shall have the right to approach a competent court for recovery of any amounts remaining unpaid.
6. It is trite that a Court of law ought not rewrite a contract lawfully entered into between parties. This has been affirmed by the Court of Appeal in Civil Appeal 95 of 1999: National Bank of Kenya vs Pipeplastic Samkolit (K) Ltd & anor where the Court of Appeal stated that “A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
7. Furthermore, the High Court has on numerous occasions exercised its jurisdiction over disputes involving Musharaka agreements such as the present case. See Milimani HCCOMM 169 of 2019: Kencom Sacco Society Limited vs National Bank of Kenya Limited, Milimani HCCOMM E105 of 2019: Mashin Constuction Limited vs Gulf African Bank Limited and Milimani HCCOMM E556 of 2023: Ibrahim Hussein Mahadi & 3 ors vs Premier Bank Kenya Limited. (Refer to the Plaintiff’s List & Bundle of Authorities dated 30th October 2025).
8. Based on the foregoing, I am satisfied that the P.O. is without merit. The same is dismissed with costs.
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1. I have considered the Preliminary Objection dated 22nd August, 2024 together with the submissions of the parties and the applicable law. The basis of the objection is that this court has no jurisdiction over the present suit because the loan advance to the Defendants is governed by Sharia Law.
2. Article 165(3) of the Constitution states that the High Court has unlimited original jurisdiction in criminal and civil matters. The Plaintiff relied on the above provision and urged the court to proceed to adjudicate the dispute between the parties herein.
3. The argument by the Defendants, on the other hand, was simply that based on Islamic Law, this Court does not have the jurisdiction, and it should refer the matter to to a committee of experts to be formed in accordance with the provisions of the Quran. Counsel clarified that this argument would apply to any facility offered by any Bank in Kenya, so long as the terms of that loan are governed by Islamic law.
4. I have considered the above and I am not persuaded. The argument advanced by the Defendants would effectively, if upheld, oust the jurisdiction of the court in relation to every facility based on Islamic legal principles. Such a decision would deter banks from offering such facilities and deprive the Muslim community from accessing loans that comply with their faith. Further, the argument that the matter ought to be referred to a committee of experts has no basis in law. The argument is untenable and is dismissed.
5. Further, it is not a disputed fact that that the agreement executed by parties expressly provides that the Plaintiff shall have the right to approach a competent court for recovery of any amounts remaining unpaid.
6. It is trite that a Court of law ought not rewrite a contract lawfully entered into between parties. This has been affirmed by the Court of Appeal in Civil Appeal 95 of 1999: National Bank of Kenya vs Pipeplastic Samkolit (K) Ltd & anor where the Court of Appeal stated that “A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
7. Furthermore, the High Court has on numerous occasions exercised its jurisdiction over disputes involving Musharaka agreements such as the present case. See Milimani HCCOMM 169 of 2019: Kencom Sacco Society Limited vs National Bank of Kenya Limited, Milimani HCCOMM E105 of 2019: Mashin Constuction Limited vs Gulf African Bank Limited and Milimani HCCOMM E556 of 2023: Ibrahim Hussein Mahadi & 3 ors vs Premier Bank Kenya Limited. (Refer to the Plaintiff’s List & Bundle of Authorities dated 30th October 2025).
8. Based on the foregoing, I am satisfied that the P.O. is without merit. The same is dismissed with costs.
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