Choudhry t/a Simz Florist v Choudhry t/a Jamillan Khushi Florists (Commercial Case 187 of 2016) [2025] KEHC 11705 (KLR) (Commercial and Tax) (31 July 2025) (Ruling)
Neutral citation:
[2025] KEHC 11705 (KLR)
Republic of Kenya
Commercial Case 187 of 2016
MN Mwangi, J
July 31, 2025
Between
Amir Mahmood Choudhry T/A Simz Florist
Plaintiff
and
Asif Mahmood Choudhry t/a Jamillan Khushi Florists
Defendant
Ruling
1.This Ruling is in respect to the plaintiff’s Notice of Preliminary Objection dated 19th July 2024, filed pursuant to the provisions of Order 17 Rule 2(5) of the Civil Procedure Amendment Rules, 2020 and Order 7 Rule 11 of the Civil Procedure Rules, 2010, seeking orders for the defendant’s defence & counterclaim dated 4th February 2020 to be struck out with costs. The said Preliminary Objection is brought on the following grounds –i.That this Honourable Court lacks jurisdiction to hear and determine the reply to defence and counterclaim dated 4th February 2020 pursuant to Order 17 Rule 5(2) which stipulates that “A suit stands dismissed after two years where no step has been undertaken”;ii.That the current counterclaim is fatally and incurably defective and cannot stand in law;iii.That the continued pendency of the counterclaim suit is an abuse of the court process of this Honourable Court; andiv.That the current counterclaim is incompetently before this Court and should be dismissed in limine.
2.The Preliminary Objection was canvassed by way of written submissions which were highlighted on 12th & 13th November 2024. The plaintiff’s submissions were filed by the law firm of Obwogi J & Company Advocates on 8th August 2024, while the defendant’s submissions were filed on 31st October 2024 by the law firm of Tariq Khan & Associates Advocates.
3.Mr. Obwogi, learned Counsel for the plaintiff submitted that the defendant’s defence and counterclaim filed on 11th August 2020 should be dismissed for want of prosecution pursuant to the provisions of Order 17 Rule 2(5) of the Civil Procedure (Amendment) Rules, 2020. He relied on the decisions made in Macauley v De Beer and another [2002] 2 KLR 260 and in Beatrice Mumbi Wamahiu v Mobil Oil Kenya Ltd [2011] eKLR and emphasized that a counterclaim is an independent cause of action from the main suit.
4.Counsel argued that since the plaintiff failed to respond to the defendant’s counterclaim, the defendant ought to have sought for default judgment, but the defendant took no action, thus his counterclaim was effectively dismissed by operation of the law on 12th May 2022 for want of prosecution. Mr. Obwogi cited the case of Anaclet Kalia Musau v Attorney General & 2 others [2020] eKLR, and contended that this Court lacks jurisdiction to hear the defendant’s counterclaim due to a two-year delay. He argued that limitation of time is a jurisdictional matter, thus the defendant’s counterclaim ought to be dismissed immediately.
5.Ms Athman, learned Counsel for the defendant cited the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd. [1969] EA 696, and submitted that the plaintiff’s Preliminary Objection fails to meet the required legal threshold, as it does not raise a pure point of law. She relied on the Court of Appeal case of Joseph Muthee Kamau & another v David Mwangi Gichure & another [2013] eKLR, and argued that a Court’s jurisdiction is determined at the time of filing suit, not retroactively. She stated that this Court has had jurisdiction to hear and determine the defendant’s counterclaim since 2016 when this suit was filed. She asserted that the Court’s jurisdiction could not have ceased simply because the plaintiff’s suit was dismissed on 11th July 2024.
6.Ms Athman referred to the case of Muna & 5 others v Boscardin & 5 others (Environment & Land Case 27 of 2020) [2022] KEELC 3133 (KLR) and the Court of Appeal case of County Government of Kilifi v Mombasa Cement Limited [2017] eKLR, and argued that since the defendant’s counterclaim arises from the same cause of action as the plaintiff’s suit, it should be heard in the same proceedings to avoid multiple suits. She contended that following the dismissal of the plaintiff’s suit on 11th July 2024, the defendant’s counterclaim is now properly before this Court. Counsel asserted that the defendant has since taken steps to prosecute its counterclaim, including attending Court on 27th July 2023 when directions in respect to the counterclaim were issued. Ms Athman maintained that under Order 7 Rule 13 of the Civil Procedure Rules the defendant’s counterclaim remains valid and within time, as two years have not lapsed since the plaintiff’s suit was dismissed.
Analysis And Determination.
7.Upon perusal of the plaintiff’s Notice of Preliminary Objection and the written submissions by Counsel for the parties, the issue that arises for determination is whether the Notice of Preliminary Objection herein should be sustained
8.In order for a Preliminary Objection to succeed, it should raise a pure point of law, it should be argued on the assumption that all the facts pleaded by the other side are correct, but it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. What constitutes a valid Preliminary Objection was considered by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (supra) as hereunder –
9.In the said case, Sir Charles Newbold P., stated thus-
10.The Supreme Court weighed in, on the issue of what constitutes a proper Preliminary Objection in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] eKLR, and stated the following -
11.The plaintiff’s Preliminary Objection argues that this Court lacks the requisite jurisdiction to hear and determine the defendant’s counterclaim, as it was automatically dismissed for want of prosecution pursuant to the provisions of Order 17 Rule 2(5) of the Civil Procedure Rules.
12.On the issue of jurisdiction, in the case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi, JA., held that–
13.This Court notes that from the record, the defendant’s defence and counterclaim dated 4th February 2020 was filed on the same day and not on 11th August 2020 as stated by the plaintiff. This position is supported by the fact that on 6th February 2020, the Court granted leave to the plaintiff to respond to the defendant’s defence & counterclaim and corresponding leave was granted to the defendant to file a reply to the plaintiff’s defence to his counterclaim.
14.As was pointed out by this Court in its ruling of 11th July 2024, this suit was scheduled for hearing on 25th February 2020 but was adjourned to 12th May 2020, on which day it was stood over generally due to non-attendance by both parties. This Court further found that no action was taken in this matter by either the plaintiff or the defendant until 31st May 2023 when it came up for Notice to Show Cause why it should not be dismissed for want of prosecution.
15.The plaintiff’s contention is that the defendant’s counterclaim stood dismissed by operation of the law pursuant to the provisions of Order 17 Rule 2 (5) of the Civil Procedure Rules which states that –
16.This Court’s considered view is that the defendant’s contention that his counterclaim could only be heard upon discontinuance or dismissal of the plaint is misconstrued because a plaint and a counterclaim ought to be canvassed in one suit as they stem from the same cause of action and to avoid multiplicity of suits. Further, I am of the considered view that just as the plaintiff, the defendant had a duty and/or responsibility to follow up on the suit and set it down for hearing, since both parties herein had a stake in the suit.
17.In view of the foregoing, I am persuaded that just like the plaintiff’s suit, the defendant’s counterclaim stood dismissed by operation of the law as at 12th May 2022.
18.In the end, this Court finds that the plaintiff’s Notice of Preliminary Objection dated 19th July 2024 is merited. It is hereby upheld with costs to the plaintiff.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF JULY 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGIJUDGEIn the presence of:-Mr. Attalo for the plaintiffMr. Malik holding brief for Mr. Khan for the defendantMs B. Wokabi – Court Assistant.