Introduction
1. By a Notice of motion application dated 17 May 2024 brought pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act and Order 13 rule 2, Order 51 rule 1 of the Civil Procedure Rules, the applicant sought for the following Orders against the Respondent;
i. THAT judgment in this suit be and is hereby entered for the Plaintiff against the Defendant as prayed in the plaint on Defendant’s own admission of indebtedness to the Plaintiff.
ii. THAT the costs of this application and of this suit be awarded to the plaintiff.
2. The application is predicated on the grounds on its face and supported by the annexed affidavit of Sean Mcelroy of even date. In the affidavit the deponent avers that he is the director of the plaintiff company, which was engaged in the manufacture and sale of stone-coated metal roof tiles. The plaintiff states that it sold various products to the Defendant between July 2021 and June 2022 at the Defendant’s request. That by various emails between April and September 2023, to the plaintiff, the Defendant expressly admitted being in arrears and provided a payment schedule to settle the outstanding amount.
3. Mr. Mcelory avers that despite the said admission, the Defendant has failed to pay the arrears, necessitating the commencement of recovery proceedings. That there are no triable issues to warrant a full hearing of this suit.
4. In response to the application, the Defendant filed a Notice of preliminary objection dated 2nd September 2024. The Defendant cited the following grounds in support of the preliminary objection:-
i. THAT this Honourable court lacks jurisdiction to hear and determine the application and the instant case since Clause 12.5 of the Distributorship Agreement expressly provided that;
“Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New Zealand to hear and determine any disputes or proceedings arising out of or in connection with this agreement.”
ii. THAT this suit is sub judice Milimani HCCHRPET No. E058/2024: Space and Style Limited vs Roof TG Pacific Limited offending the banal provisions of Section 6 of the Civil Procedure Act.
iii. THAT this suit is a smokescreen aimed at intimidating the Defendant into shying away from prosecuting HCCHRPET No. E058 of 2024.
iv. THAT the instant suit is misconceived and fatally and incurably defective.
5. Both the application and the notice of preliminary objection were canvassed by written submissions. The Applicant filed submissions dated 21st November 2024, whilst the Respondent filed theirs dated 18th November 2024.
Applicant’s submissions
6. The Applicant/Plaintiff submitted that the Defendant’s objection to this Court’s jurisdiction is not merited. While admitting parties unconditionally agreed in the Distrutorship Agreement to submit to the exclusive jurisdiction of the New Zealand Courts, the Plaintiff argued that the Defendant, having unconditionally acknowledged this Court’s jurisdiction, cannot now object to its jurisdiction.
7. Citing the case of Hassan Zubeidi vs Active Partners Group Ltd & 3 Others (2018) eKLR, the Plaintiff asserted that where a party disputes the jurisdiction of the court based on an exclusive jurisdiction clause, the party must indicate its disapproval at the time of entering appearance by entering a conditional appearance or an appearance under protest.
8. It was submitted for the Plaintiff that the Defendant, having entered unconditional appearance on 11 March 2024, cannot, 6 months later, be heard objecting to the Court’s jurisdiction. The Plaintiff maintained that the Defendant had already accepted the Court’s jurisdiction and thus the court should dismiss the preliminary objection.
9. It was further the Plaintiff’s argument that its evidence on the Defendant’s admission of the amount claimed is uncontroverted since no evidence was filed by way of a replying affidavit to the Application. Reliance was placed on Faustina Njeru Njoka vs Kimunye Tea Factory Limited (2022)eKLR, where the court held that a preliminary objection and grounds of opposition, though means of opposing an application, are not to be used when one intends to deny allegations in an application. That where a replying affidavit is not filed, then in essence, the averments in an application are deemed as uncontroverted and unchallenged.
10. The Plaintiff, therefore, maintained that the factual allegations by the Plaintiff stand unopposed and the Court should allow the application.
11. Relying on, among others, the case of Choitram vs Nazari (1984) eKLR, the Plaintiff maintained that the Defendant’s admission of the debt was clear and unequivocal and consequently, the application ought to be granted.
12. According to the Plaintiff, the Defendant admitted its indebtedness to the Plaintiff through various emails between April and September 2023. That by email dated 13th April 2023, the Defendant’s Managing Director acknowledged a debt of USD 792,399 and proposed a payment plan. By email dated 28 June 2023, the Defendant confirmed her commitment to clear all plaintiff obligations. And by email dated 6 September 2023, the Defendant’s Managing Director asked for time to present a further payment plan.
13. Consequently, it was the Plaintiff’s prayer that the application be granted and judgment accordingly entered.
Respondent’s submissions
14. The Respondent, in support of its Preliminary Objection, took the position that this Court lacks jurisdiction to hear and determine this suit and application. According to the Defendant, Clause 12.5 of the Distributorship Agreement unconditionally assigned exclusive jurisdiction to the Courts of New Zealand to hear and determine any disputes or proceedings arising out of or in connection with the agreement.
15. Citing the case of Risk Africa Innovatis Limited vs Smartmatic International Holdings B. V. A & 3 others (Civil Appeal (Application) E008 of 2022 (2022)KECA 427 (KLR) where the court cited with approval case of Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited 1(989) KLR 1, the Defendant submitted that without jurisdisdiction, there would be no legal basis for a continuation of proceedings and the court therefore ought to down its tools.
16. The Defendant therefore urged this court that, on the basis of lack of jurisdiction alone, the Plaintiff’s application and entire suit ought to be struck out.
17. Regarding the Plaintiff’s application dated 17th May 2024, the Defendant submitted that the application is brought in bad faith, with the intention of misleading this court through deliberate non-disclosure of material facts. In particular, the Defendant submitted that the Plaintiff failed to disclose to this Court the existence of a Running Trade Credit account for up to USD 1,200,000 covered by an insurance policy serviced by the Defendant at the rate of 1% of the amount credited to it by the Plaintiff.
18. In the premises, the Defendant urged this Court to dismiss the Plaintiff’s application dated 17th May 2024 and allow its Preliminary Objection dated 28 March 2024.
Analysis and Determination
19. Having considered both the application and the objection, the rival submissions, and the authorities relied upon. I opine that the issues for determination are as follows:-
i. Whether the notice of preliminary objection is merited?
ii. Whether the plaintiff has made out a case to warrant entry of judgment on admission?
Whether the Preliminary Objection is merited
20. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is always the starting point on the issue of what constitutes a preliminary objection. The court observed 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…”
21. 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.”
22. Again, the Supreme Court in the case of Hassan Ali Joho & another v 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.”
23. It follows, therefore, that a preliminary objection must be based on a clear and established point of law, and can only be properly raised when the facts of the case are not in dispute.
24. In the present case, the Defendant objected to the Plaintiff’s application and the entire suit on the basis that this Court lacks jurisdiction. Referring to Clause 12.5 of the Distributorship Agreement signed between the Plaintiff and the Defendant, the Defendant submitted that the parties agreed that any dispute arising out of or in connection with the agreement was exclusively left for the Courts in New Zealand. The Defendant submitted that the subject Clause provided as follows:
“12.5. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New Zealnd to hear and determine any disputes or proceedings arising out of or in connection with this agreement.”
25. The Plaintiff, while not disputing the existence or content of Clause 12.5 of the Distributorship Agreement—which confers exclusive jurisdiction on the courts of New Zealand—contends that the Defendant, by entering an unconditional appearance in this matter, has waived its right to object and cannot now challenge this Court’s jurisdiction
26. I have considered the rival arguments. I agree with the Plaintiff’s submissions that where a party disputes the jurisdiction of the Court on the basis of an exclusive jurisdiction clause, then that party must indicate its disapproval at the time of Entering an Appearance. This is the position as affirmed in the case of Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited v Petra Development Services Limited [2016] eKLR cited by the Plaintiff, where the court stated that:
“In Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited v Petra Development Services Limited [2016] eKLR, the Court of Appeal again stated: “Where parties have bound themselves on the jurisdiction and the law to govern the transaction, a party, by conduct may be presumed to have waived the term and submitted to the jurisdiction of the local courts. The well-known circumstances where a party is so presumed include where the party upon service of summons enters appearance without protesting jurisdiction like the appellants initially did. For the exclusive jurisdiction clause to have effect it must be clear to all that jurisdiction is protested at the earliest point of entering appearance.”
27. Similarly, in the case of Hassan Zubeidi v Active Partners Group Ltd & 3 others [2018] eKLR cited by the Plaintiff, the Court, relying on the Court of Appeal decision in Kanti & Co. Ltd vs. South British Insurance Co. Ltd [1981] eKLR confirmed the above argument and stated that:
“16. Secondly, and this is a General Proposition, where a party disputes the jurisdiction of the Court on the basis of an Exclusive jurisdiction clause, the party must indicate its disapproval at the time of Entering Appearance. Typically, a party that disagrees with jurisdiction ought to enter a conditional Appearance or an Appearance under protest. As the premise for resisting Jurisdiction is the agreed choice of Law and/or Forum, it is imperative that a party signals its disapproval at the earliest opportunity; otherwise, it is taken to have waived its Right to the clause and, as a consequence, to have submitted to the Jurisdiction of the Local Courts. It is for this reason that Jurisdiction cannot be protested by an Amendment to an Entry of Appearance that was originally unconditional…”
28. In any event, it is well established through judicial precedent that the mere existence of an exclusive jurisdiction clause conferring authority upon a foreign court does not, of itself, automatically oust the jurisdiction of Kenyan courts. Kenyan courts retain the discretion to assume jurisdiction where a matter is filed before them, notwithstanding the presence of such a clause. This position was affirmed in the case of United India Insurance Co. Ltd (Kenya) Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898, where Madan JA observed as follows:
“The The courts of this country have a discretion to assume jurisdiction over an agreement which is made to be performed in Kenya notwithstanding a clause therein conferring jurisdiction upon the courts of some other country. The exclusive jurisdiction clause however should normally be respected because the parties themselves freely fixed the forums for the settlement of their disputes; the court should carry out the intention of the parties and enforce the agreement made by them in accordance with the principle that a contractual undertaking should be honoured unless there is strong reason for not keeping them bound by their agreement.”
29. In exercising its discretion, the court stated that regard should be had to all the circumstances of the particular case and the following matters, where they arise, may properly be considered: -
i. In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the court of the country and the court of the foreign country.
ii. whether the law of the foreign court applies, and if so, whether it differs from the law of the country in any material respects.
iii. with what country either party is connected, and how closely
iv. whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantage
v. whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would be deprived of security for their claim, be unable to enforce any judgment obtained, be faced with a time bar not applicable in their country.
30. In the instant case, apart from the fact that the Defendant unconditionally entered appearance thereby waiving its right to rely on the exclusive jurisdiction clause, the Court is persuaded that the circumstances outlined in the case of United India Insurance Co. Ltd (Kenya) Ltd (supra) support a finding that this Court has jurisdiction over the dispute. Accordingly, the Defendant’s objection to this Court’s jurisdiction is without merit and is hereby dismissed.
31. The other issue raised by the Defendant in its Preliminary objection is that the suit herein is subjudice the Milimani HCCHRPET No. E058/2024: Space and Style Limited vs Roof TG Pacific Limited, and therefore offend the provisions of Section 6 of the Civil Procedure Act. According to the Defendant, the instant suit by the Plainitff is a smokescreen solely aimed at intimaditing the Defendant from prosecuting the Milimani HCCHRPET No. E058/2024.
32. Section 6 of the Civil Procedure Act establishes the doctrine of sub judice in the following terms:-
“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
33. The court (Mativo J) in the case of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya [2020] eKLR stated as follows on the doctrine of res judicata:-
“…..there exists the concept of sub judice which in Latin means “under judgment.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.”
34. In this case, notwithstanding that the Plaintiff did not file any submissions in rebuttal to this particular ground of preliminary objection, the Court finds the objection to be unsupported. The Defendant failed to furnish any material, whether by way of affidavit evidence or otherwise, setting out the particulars of Milimani HCCHRPET No. E058 of 2024, to enable the Court to determine whether the present suit is indeed sub judice that matter, as alleged. In the absence of such evidence, the objection cannot be sustained.
Whether the plaintiff has made out a case to warrant entry of judgment on admission
35. Order 13 Rule 2 of the Civil Procedure Rules provides:-
“Any party may at any stage of a suit where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may upon such application make such order, or give such judgment, as the court may think just.”
36. The legal principles underpinning the grant or refusal of an application for judgment on admission has been the subject of numeriuos court decision. In the case of Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR, Mativo J expounded on the scope of the rule and stated as follows:
“The scope of the rule is that in a case where admission of fact has been made by either of the parties in pleadings whether orally or in writing, or otherwise, the judgment to the extent of the admission can be granted on the application or as the court may think just. Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. There is a need not to unduly narrow down the meaning of this rule because its object is to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed. The rule should apply wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed. The admission should be clear and unambiguous."
37. It therefore follows that to succeed in an application judgment on admission, it must be demonstrated that the admission is clear, plain and unequivocal. This principle was enunciated in Choitram v Nazari [1984] KLR 327, where the Court stated that for purposes of Order 13 Rule 2:-
“...admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning.”
38. In the present case, the Plaintiff submitted that the Defendant has clearly and unambiguously admitted its indebtedness to the Plaintiff. In support of this submission, the Plaintiff annexed to the application a series of emails exchanged between the parties between April and September 2023, which, according to the Plaintiff, contain express admissions of the debt by the Defendant. The emails include the following:-
i. an email dated 13th April 2023, where the Defendant’s Managing Director allegedly acknowledged a deb of USD 792,399 and proposed a payment plan;
ii. an email of 28th June 2023, where the Defendant’s managed director allegedly confirmed her commitment “to clear all our obligations.”
iii. an email of 6th September 2023, where the Defendant’s managing director again allegedly asked for time to present a further payment plan.
39. I have carefully considered the affidavit of Sean McElroy, sworn on 17th May 2024, in support of the application. I have also perused the various email correspondences annexed thereto as “SM-1.” While the emails do suggest that the Defendant is indebted to the Plaintiff, I am of the view that it would be unsafe to grant the orders sought at this interlocutory stage. This is particularly in light of the Defendant’s assertion that the Plaintiff has failed to disclose material information, specifically, the existence of a Running Trade Credit account of up to USD 1,200,000/-, allegedly covered by an insurance policy serviced by the Defendant at a rate of 1% of the credited amounts.
40. In the circumstances, it is the considered view of this Court that justice would be better served if the matter proceeds to a full trial, where both parties will have the opportunity to fully ventilate their respective cases on merit.
41. In the case of Synergy Industrial Credit Limited (supra) the Court outlined circumstances under which judgment on admission can be declined. The Court stated as follows:
“23. This discourse would be incomplete if I do not address the question when judgment on admission can be declined. First, it is wholly inappropriate to permit any party to employ this provision where vexed and complicated questions or issues of law have arisen. On the other hand, it is a futile exercise, and a serious miscarriage of justice, if parties are compelled to undergo a full trial where the case can be brought to an earlier and quicker culmination on the foundation of admissions made by a party. Second, the rule however, invests discretion to the court - that is - even if there is an unequivocal admission by a party but the passing of a judgment would cause injustice, judgment ought to be declined.
24. Third, where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the Plaintiff. The purpose of Order 13 Rule 2 is to avoid waiting by the Plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the Plaintiff is entitled to a particular order or judgment, he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise, where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to the decree and the plaintiff in that event cannot have a decree by virtue of provision of Order 13 Rule 2 without proving those issues.”
42. Arising from the foregoing analysis, the Plaintiff’s application for judgment on admission and the Defendant’s Preliminary Objection are hereby dismissed. Each party shall bear its own costs.
43. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
………………………..for Applicant
……………………....for Respondent
1. By a Notice of motion application dated 17 May 2024 brought pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act and Order 13 rule 2, Order 51 rule 1 of the Civil Procedure Rules, the applicant sought for the following Orders against the Respondent;
i. THAT judgment in this suit be and is hereby entered for the Plaintiff against the Defendant as prayed in the plaint on Defendant’s own admission of indebtedness to the Plaintiff.
ii. THAT the costs of this application and of this suit be awarded to the plaintiff.
2. The application is predicated on the grounds on its face and supported by the annexed affidavit of Sean Mcelroy of even date. In the affidavit the deponent avers that he is the director of the plaintiff company, which was engaged in the manufacture and sale of stone-coated metal roof tiles. The plaintiff states that it sold various products to the Defendant between July 2021 and June 2022 at the Defendant’s request. That by various emails between April and September 2023, to the plaintiff, the Defendant expressly admitted being in arrears and provided a payment schedule to settle the outstanding amount.
3. Mr. Mcelory avers that despite the said admission, the Defendant has failed to pay the arrears, necessitating the commencement of recovery proceedings. That there are no triable issues to warrant a full hearing of this suit.
4. In response to the application, the Defendant filed a Notice of preliminary objection dated 2nd September 2024. The Defendant cited the following grounds in support of the preliminary objection:-
i. THAT this Honourable court lacks jurisdiction to hear and determine the application and the instant case since Clause 12.5 of the Distributorship Agreement expressly provided that;
“Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New Zealand to hear and determine any disputes or proceedings arising out of or in connection with this agreement.”
ii. THAT this suit is sub judice Milimani HCCHRPET No. E058/2024: Space and Style Limited vs Roof TG Pacific Limited offending the banal provisions of Section 6 of the Civil Procedure Act.
iii. THAT this suit is a smokescreen aimed at intimidating the Defendant into shying away from prosecuting HCCHRPET No. E058 of 2024.
iv. THAT the instant suit is misconceived and fatally and incurably defective.
5. Both the application and the notice of preliminary objection were canvassed by written submissions. The Applicant filed submissions dated 21st November 2024, whilst the Respondent filed theirs dated 18th November 2024.
Applicant’s submissions
6. The Applicant/Plaintiff submitted that the Defendant’s objection to this Court’s jurisdiction is not merited. While admitting parties unconditionally agreed in the Distrutorship Agreement to submit to the exclusive jurisdiction of the New Zealand Courts, the Plaintiff argued that the Defendant, having unconditionally acknowledged this Court’s jurisdiction, cannot now object to its jurisdiction.
7. Citing the case of Hassan Zubeidi vs Active Partners Group Ltd & 3 Others (2018) eKLR, the Plaintiff asserted that where a party disputes the jurisdiction of the court based on an exclusive jurisdiction clause, the party must indicate its disapproval at the time of entering appearance by entering a conditional appearance or an appearance under protest.
8. It was submitted for the Plaintiff that the Defendant, having entered unconditional appearance on 11 March 2024, cannot, 6 months later, be heard objecting to the Court’s jurisdiction. The Plaintiff maintained that the Defendant had already accepted the Court’s jurisdiction and thus the court should dismiss the preliminary objection.
9. It was further the Plaintiff’s argument that its evidence on the Defendant’s admission of the amount claimed is uncontroverted since no evidence was filed by way of a replying affidavit to the Application. Reliance was placed on Faustina Njeru Njoka vs Kimunye Tea Factory Limited (2022)eKLR, where the court held that a preliminary objection and grounds of opposition, though means of opposing an application, are not to be used when one intends to deny allegations in an application. That where a replying affidavit is not filed, then in essence, the averments in an application are deemed as uncontroverted and unchallenged.
10. The Plaintiff, therefore, maintained that the factual allegations by the Plaintiff stand unopposed and the Court should allow the application.
11. Relying on, among others, the case of Choitram vs Nazari (1984) eKLR, the Plaintiff maintained that the Defendant’s admission of the debt was clear and unequivocal and consequently, the application ought to be granted.
12. According to the Plaintiff, the Defendant admitted its indebtedness to the Plaintiff through various emails between April and September 2023. That by email dated 13th April 2023, the Defendant’s Managing Director acknowledged a debt of USD 792,399 and proposed a payment plan. By email dated 28 June 2023, the Defendant confirmed her commitment to clear all plaintiff obligations. And by email dated 6 September 2023, the Defendant’s Managing Director asked for time to present a further payment plan.
13. Consequently, it was the Plaintiff’s prayer that the application be granted and judgment accordingly entered.
Respondent’s submissions
14. The Respondent, in support of its Preliminary Objection, took the position that this Court lacks jurisdiction to hear and determine this suit and application. According to the Defendant, Clause 12.5 of the Distributorship Agreement unconditionally assigned exclusive jurisdiction to the Courts of New Zealand to hear and determine any disputes or proceedings arising out of or in connection with the agreement.
15. Citing the case of Risk Africa Innovatis Limited vs Smartmatic International Holdings B. V. A & 3 others (Civil Appeal (Application) E008 of 2022 (2022)KECA 427 (KLR) where the court cited with approval case of Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited 1(989) KLR 1, the Defendant submitted that without jurisdisdiction, there would be no legal basis for a continuation of proceedings and the court therefore ought to down its tools.
16. The Defendant therefore urged this court that, on the basis of lack of jurisdiction alone, the Plaintiff’s application and entire suit ought to be struck out.
17. Regarding the Plaintiff’s application dated 17th May 2024, the Defendant submitted that the application is brought in bad faith, with the intention of misleading this court through deliberate non-disclosure of material facts. In particular, the Defendant submitted that the Plaintiff failed to disclose to this Court the existence of a Running Trade Credit account for up to USD 1,200,000 covered by an insurance policy serviced by the Defendant at the rate of 1% of the amount credited to it by the Plaintiff.
18. In the premises, the Defendant urged this Court to dismiss the Plaintiff’s application dated 17th May 2024 and allow its Preliminary Objection dated 28 March 2024.
Analysis and Determination
19. Having considered both the application and the objection, the rival submissions, and the authorities relied upon. I opine that the issues for determination are as follows:-
i. Whether the notice of preliminary objection is merited?
ii. Whether the plaintiff has made out a case to warrant entry of judgment on admission?
Whether the Preliminary Objection is merited
20. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is always the starting point on the issue of what constitutes a preliminary objection. The court observed 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…”
21. 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.”
22. Again, the Supreme Court in the case of Hassan Ali Joho & another v 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.”
23. It follows, therefore, that a preliminary objection must be based on a clear and established point of law, and can only be properly raised when the facts of the case are not in dispute.
24. In the present case, the Defendant objected to the Plaintiff’s application and the entire suit on the basis that this Court lacks jurisdiction. Referring to Clause 12.5 of the Distributorship Agreement signed between the Plaintiff and the Defendant, the Defendant submitted that the parties agreed that any dispute arising out of or in connection with the agreement was exclusively left for the Courts in New Zealand. The Defendant submitted that the subject Clause provided as follows:
“12.5. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New Zealnd to hear and determine any disputes or proceedings arising out of or in connection with this agreement.”
25. The Plaintiff, while not disputing the existence or content of Clause 12.5 of the Distributorship Agreement—which confers exclusive jurisdiction on the courts of New Zealand—contends that the Defendant, by entering an unconditional appearance in this matter, has waived its right to object and cannot now challenge this Court’s jurisdiction
26. I have considered the rival arguments. I agree with the Plaintiff’s submissions that where a party disputes the jurisdiction of the Court on the basis of an exclusive jurisdiction clause, then that party must indicate its disapproval at the time of Entering an Appearance. This is the position as affirmed in the case of Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited v Petra Development Services Limited [2016] eKLR cited by the Plaintiff, where the court stated that:
“In Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited v Petra Development Services Limited [2016] eKLR, the Court of Appeal again stated: “Where parties have bound themselves on the jurisdiction and the law to govern the transaction, a party, by conduct may be presumed to have waived the term and submitted to the jurisdiction of the local courts. The well-known circumstances where a party is so presumed include where the party upon service of summons enters appearance without protesting jurisdiction like the appellants initially did. For the exclusive jurisdiction clause to have effect it must be clear to all that jurisdiction is protested at the earliest point of entering appearance.”
27. Similarly, in the case of Hassan Zubeidi v Active Partners Group Ltd & 3 others [2018] eKLR cited by the Plaintiff, the Court, relying on the Court of Appeal decision in Kanti & Co. Ltd vs. South British Insurance Co. Ltd [1981] eKLR confirmed the above argument and stated that:
“16. Secondly, and this is a General Proposition, where a party disputes the jurisdiction of the Court on the basis of an Exclusive jurisdiction clause, the party must indicate its disapproval at the time of Entering Appearance. Typically, a party that disagrees with jurisdiction ought to enter a conditional Appearance or an Appearance under protest. As the premise for resisting Jurisdiction is the agreed choice of Law and/or Forum, it is imperative that a party signals its disapproval at the earliest opportunity; otherwise, it is taken to have waived its Right to the clause and, as a consequence, to have submitted to the Jurisdiction of the Local Courts. It is for this reason that Jurisdiction cannot be protested by an Amendment to an Entry of Appearance that was originally unconditional…”
28. In any event, it is well established through judicial precedent that the mere existence of an exclusive jurisdiction clause conferring authority upon a foreign court does not, of itself, automatically oust the jurisdiction of Kenyan courts. Kenyan courts retain the discretion to assume jurisdiction where a matter is filed before them, notwithstanding the presence of such a clause. This position was affirmed in the case of United India Insurance Co. Ltd (Kenya) Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898, where Madan JA observed as follows:
“The The courts of this country have a discretion to assume jurisdiction over an agreement which is made to be performed in Kenya notwithstanding a clause therein conferring jurisdiction upon the courts of some other country. The exclusive jurisdiction clause however should normally be respected because the parties themselves freely fixed the forums for the settlement of their disputes; the court should carry out the intention of the parties and enforce the agreement made by them in accordance with the principle that a contractual undertaking should be honoured unless there is strong reason for not keeping them bound by their agreement.”
29. In exercising its discretion, the court stated that regard should be had to all the circumstances of the particular case and the following matters, where they arise, may properly be considered: -
i. In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the court of the country and the court of the foreign country.
ii. whether the law of the foreign court applies, and if so, whether it differs from the law of the country in any material respects.
iii. with what country either party is connected, and how closely
iv. whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantage
v. whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would be deprived of security for their claim, be unable to enforce any judgment obtained, be faced with a time bar not applicable in their country.
30. In the instant case, apart from the fact that the Defendant unconditionally entered appearance thereby waiving its right to rely on the exclusive jurisdiction clause, the Court is persuaded that the circumstances outlined in the case of United India Insurance Co. Ltd (Kenya) Ltd (supra) support a finding that this Court has jurisdiction over the dispute. Accordingly, the Defendant’s objection to this Court’s jurisdiction is without merit and is hereby dismissed.
31. The other issue raised by the Defendant in its Preliminary objection is that the suit herein is subjudice the Milimani HCCHRPET No. E058/2024: Space and Style Limited vs Roof TG Pacific Limited, and therefore offend the provisions of Section 6 of the Civil Procedure Act. According to the Defendant, the instant suit by the Plainitff is a smokescreen solely aimed at intimaditing the Defendant from prosecuting the Milimani HCCHRPET No. E058/2024.
32. Section 6 of the Civil Procedure Act establishes the doctrine of sub judice in the following terms:-
“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
33. The court (Mativo J) in the case of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya [2020] eKLR stated as follows on the doctrine of res judicata:-
“…..there exists the concept of sub judice which in Latin means “under judgment.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.”
34. In this case, notwithstanding that the Plaintiff did not file any submissions in rebuttal to this particular ground of preliminary objection, the Court finds the objection to be unsupported. The Defendant failed to furnish any material, whether by way of affidavit evidence or otherwise, setting out the particulars of Milimani HCCHRPET No. E058 of 2024, to enable the Court to determine whether the present suit is indeed sub judice that matter, as alleged. In the absence of such evidence, the objection cannot be sustained.
Whether the plaintiff has made out a case to warrant entry of judgment on admission
35. Order 13 Rule 2 of the Civil Procedure Rules provides:-
“Any party may at any stage of a suit where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may upon such application make such order, or give such judgment, as the court may think just.”
36. The legal principles underpinning the grant or refusal of an application for judgment on admission has been the subject of numeriuos court decision. In the case of Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR, Mativo J expounded on the scope of the rule and stated as follows:
“The scope of the rule is that in a case where admission of fact has been made by either of the parties in pleadings whether orally or in writing, or otherwise, the judgment to the extent of the admission can be granted on the application or as the court may think just. Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. There is a need not to unduly narrow down the meaning of this rule because its object is to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed. The rule should apply wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed. The admission should be clear and unambiguous."
37. It therefore follows that to succeed in an application judgment on admission, it must be demonstrated that the admission is clear, plain and unequivocal. This principle was enunciated in Choitram v Nazari [1984] KLR 327, where the Court stated that for purposes of Order 13 Rule 2:-
“...admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning.”
38. In the present case, the Plaintiff submitted that the Defendant has clearly and unambiguously admitted its indebtedness to the Plaintiff. In support of this submission, the Plaintiff annexed to the application a series of emails exchanged between the parties between April and September 2023, which, according to the Plaintiff, contain express admissions of the debt by the Defendant. The emails include the following:-
i. an email dated 13th April 2023, where the Defendant’s Managing Director allegedly acknowledged a deb of USD 792,399 and proposed a payment plan;
ii. an email of 28th June 2023, where the Defendant’s managed director allegedly confirmed her commitment “to clear all our obligations.”
iii. an email of 6th September 2023, where the Defendant’s managing director again allegedly asked for time to present a further payment plan.
39. I have carefully considered the affidavit of Sean McElroy, sworn on 17th May 2024, in support of the application. I have also perused the various email correspondences annexed thereto as “SM-1.” While the emails do suggest that the Defendant is indebted to the Plaintiff, I am of the view that it would be unsafe to grant the orders sought at this interlocutory stage. This is particularly in light of the Defendant’s assertion that the Plaintiff has failed to disclose material information, specifically, the existence of a Running Trade Credit account of up to USD 1,200,000/-, allegedly covered by an insurance policy serviced by the Defendant at a rate of 1% of the credited amounts.
40. In the circumstances, it is the considered view of this Court that justice would be better served if the matter proceeds to a full trial, where both parties will have the opportunity to fully ventilate their respective cases on merit.
41. In the case of Synergy Industrial Credit Limited (supra) the Court outlined circumstances under which judgment on admission can be declined. The Court stated as follows:
“23. This discourse would be incomplete if I do not address the question when judgment on admission can be declined. First, it is wholly inappropriate to permit any party to employ this provision where vexed and complicated questions or issues of law have arisen. On the other hand, it is a futile exercise, and a serious miscarriage of justice, if parties are compelled to undergo a full trial where the case can be brought to an earlier and quicker culmination on the foundation of admissions made by a party. Second, the rule however, invests discretion to the court - that is - even if there is an unequivocal admission by a party but the passing of a judgment would cause injustice, judgment ought to be declined.
24. Third, where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favor of the Plaintiff. The purpose of Order 13 Rule 2 is to avoid waiting by the Plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the Plaintiff is entitled to a particular order or judgment, he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise, where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to the decree and the plaintiff in that event cannot have a decree by virtue of provision of Order 13 Rule 2 without proving those issues.”
42. Arising from the foregoing analysis, the Plaintiff’s application for judgment on admission and the Defendant’s Preliminary Objection are hereby dismissed. Each party shall bear its own costs.
43. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
………………………..for Applicant
……………………....for Respondent