Extempore
1. This is appeal from the ruling of the Subordinate Court dismissing the Appellant’s preliminary objection to the suit. The Appellant contended that the Subordinate Court lacked jurisdiction on the ground that the value of the subject matter, being the suit property, was beyond the Kshs. 20,000,000.00 threshold of the Magistrates Court’s jurisdiction. The parties filed written submissions and their advocates made brief oral arguments.
2. The trial magistrate ruled that the value of the subject matter was a matter of evidence hence objection was not within the meaning of a preliminary objection as defined by the decision in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors [1969] EA 696. In that seminal case the court 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.
3. I agree with the position taken by the trial magistrate. Mr Kiptoo, counsel for the Appellant, conceded that the value of the suit property could not be discerned from the Plaint but was stated in the documents lodged with the Plaint.
4. A preliminary objection of this nature must be apparent from the face of the pleading, in this case the plaint, which it taken to be true and correct. Any other document such as the valuation relied on by the Appellant is subject to contestation by the other party and therefore the proper way to object to jurisdiction, if it cannot be discerned from the face of the pleading, is to file an application to strike out the plaint.
5. For the aforesaid reason, I hold that the trial magistrate was correct. I therefore dismiss the appeal but with no order as to costs.
DATED and DELIVERED at NAIROBI this 8th day of DECEMBER 2023
D. S. MAJANJA
JUDGE