Courts have no jurisdiction where the cause of action arose in a foreign nation

Summary
In this rather interesting case, the High Court quashed the decision of the Mombasa Magistrate Court in which the said magistrate court purported to confer jurisdiction on itself in a matter whose cause of action arose in a foreign nation. The advocates for the successful applicant was Okello Kinyanjui and Company LLP.

Introduction and background
On or about the 19th January 2019, a motor vehicle Registration number KBZ 892 W belonging to Kyoga Hauliers Ltd. (the interested party) and trailer Registration number ZC 8785 also belongin to the interested party were allegedly crushed by motor vehicle KBQ 998 R and trailer number ZD 9158 belonging to Absin Synergy Ltd. (the applicant) at Butisema in the Republic of Uganda as a consequence of which the interested party’s vehicle was alleged to have been damaged. By a plaint dated 20th September 2019, the interested party sued the applicant at the Chief Magistrates court at Mombasa (the respondent seeking recovery of special damages allegedly arising from the said accident plus costs of the suit and interests. However, on 9th December 2019, the applicant herein filed a Notice of a Preliminary Objection objecting to the respondent’s jurisdiction to entertain the case on grounds that the cause of action arose in the Republic of Uganda, outside the respondent’s jurisdiction, and urging that should the court find it had jurisdiction, the Kenyan court was not the convenient place to sue under what the applicant described as “the doctrine of forum non conveniens.”

By a ruling rendered dated 4th June 2021, the respondent dismissed the preliminary objection arguing that under section 14 of the Civil Procedure Act (the CPA), the interested party may opt to bring its suit either in the court within whose local limits the cause of action arose or the court within whose jurisdiction the defendant resides or carries on business. The respondent stated that there was no dispute that the applicant resides or carries on business within the jurisdiction of the respondent and held that the respondent was vested with jurisdiction.

Aggrieved by the said decision, the applicant pursuant to this court’s leave granted on 14th July 2021 sought an order of certiorari to quash the said ruling. It also prayed for costs of the application. In support of the application, the applicant stated that the respondent failed to appreciate the import of section 14 of the CPA and the fact that the court cannot have jurisdiction where the cause of action arises in a foreign country. It argued that the court illegally assumed jurisdiction in breach of articles 1 and 2 of the Constitution and section 14 of the CPA, and that it would suffer prejudice if the respondent heard the case. The respondent did not file any response or submissions nor did it participate in these proceedings despite being served.

The interested party by the replying affidavit of a one Samson Dola, its insurance officer dated 4th October 2021 opposed the application. The key points in its opposition were:-

(a) the applicant is a company incorporated in Kenya having its offices at Mombasa which is in line with section 14 of the CPA;
(b) that both parties are Kenyans;
(c) that the law does not permit filing suits in a foreign country;
(d) that since the applicant contends that the respondent misapprehended the law, its remedy lies in an appeal against the said decision.

Ruling
(a) The court started by stating that no court can proceed with a matter if it does not have jurisdiction to do so.

(b) The court noted that the term jurisdiction has been demarcated in three categories, namely;

• subject matter jurisdiction, i.e., whether the particular court in question has the jurisdiction to deal with the subject matter in question;

• territorial jurisdiction, i.e., whether the court can decide upon matters within the territory or area where the cause of action arose; and

• pecuniary jurisdiction i.e., whether the court can hear a suit of the value of the suit in question. These three categories of jurisdiction are prerequisite to the assumption of a court’s jurisdiction, a sine qua non. The absence of any of these three is sufficient to extinguish a court’s jurisdiction or invalidate the proceedings.

(c) Section 5 of the CPA deals with the aspect of jurisdiction of civil courts in Kenya and it provides that any court shall, subject to the provisions contained in the CPA, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.

(d) The civil court has jurisdiction to try a suit if the following two conditions are fulfilled:

• The suit must be of civil nature;

• The cognizance of such a suit should not be barred expressly or impliedly.

(e) Strictly, a suit is only effective if the court has jurisdiction to adjudicate the issues raised in the suit.

(f) Importantly, and highly relevant to this case, jurisdiction of the court does not extend into a foreign country. It refers to the local area upon which its jurisdiction extends within the Republic of Kenya.

(g) The court perceived that the application stood or fell on the provisions of section 14 of the CPA which provides:

“Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the in either of those courts.”

(h) The key words in section 14 of the CPA are- “if the wrong was done within the local limits of the jurisdiction of one court,” and it is elementary logic that Uganda is not within the local limits of the Magistrates court in Mombasa or any court in the Republic of Kenya

(i) Additionally, the respondent misconstrued the provisions of section 15 of the CPA which must be read together with section 14. The opening words of section 15 are:- “Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction…”

(j) The court reiterated that the Constitution requires a purposive approach to statutory interpretation but a contextual or purposive reading of a statute must of course remain faithful to the actual wording of the statute.

(k) As to the interested party’s argument that the applicant’s grounds were essentially grounds of appeal and therefore the applicant ought to have appealed against the decision, the court found that the supervisory jurisdiction of the High Court over subordinate courts involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner, but this power does not vest the High Court with an unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal.

(l) The fact that the respondent assumed jurisdiction not expressly conferred upon him by the law and in a blatant breach of section 14 of the CPA is itself a proper case for the High Court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law.

(m) The court thus granted the issuance of an order of certiorari quashing the decision/order made on 4th June 2021 by the respondent in and all the consequential orders and further granted the issuance of an order of prohibition prohibiting the respondent or any other court in the Republic of Kenya from proceeding with the said case or any other suit arising from the same cause of action.

Comment
1. The court clarified the meaning of section 14, which for some strange reason has been used by inferior courts to accept jurisdiction in matters where the course of action arose outside Kenya.

2. The court reiterated its power to supervise the inferior courts where the inferior court has acted in excess or without jurisdiction.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2022/01/Republic-vs-Magistrates-Court-Mombasa-ex-p-Absin-Synergy-Ltd.pdf