[1] Before Court for determination is Notice Motion dated 24 th February 2025. It was brought under Sections 1A, 1B, 3A and 18(1)(b) of the Civil Procedure Act, Cap 21 of the Laws of Kenya for the following Orders:
[a] Spent.
[b] That the Court be pleased to order transfer of Kabiyet Chief Magistrates Civil Case Numbers E054 of 2024, E055 of 2024, E056 of 2024, E057 of 2024 and E058 of 2024, filed by various plaintiffs against the two respondents, In Motion Regional Logistics Ltd and Ibrahim Alami to Kapsabet Chief Magistrate's court for hearing and determination.
[c] That the cost of the application be provided for.
[2] The application was premised on the grounds that the cause of action in the above mentioned cases arose from a road traffic accident which occurred on the 23 rd October 2024 in Kapsabet township involving Motor Vehicle Registration Number KCC 107U/ZD 9829; and that the suits were inadvertently filed in Kabiyet Magistrate’s Court; which court does not have the geographical jurisdiction to handle the suits. The applicants further averred that the mistake on the part of their counsel is excusable and can be effectively corrected justly and in a cost-effective manner by way of transfer pursuant to the overriding objectives of this civil procedure.
[3] The application was supported by affidavit sworn by David Ngetich (the 1 st applicant herein) sworn on 24 th February 2025. In essence, the applicants averred that on the 23 rd October, 2024 they were involved in a road traffic accident within Kapsabet township when they were hit and injured by Motor Vehicle Registration Number KCC 107U/ZD 9829. They stated that they reported the accident at Kapsabet Police Station and were issued with Police Abstracts. They consequently instructed counsel to claim recompense from the driver and owner of the subject motor vehicle, but that the suits were mistakenly filed at Kabiyet Magistrates Court instead of Kapsabet Chief Magistrate’s Court.
[4] The application was opposed by the two respondents vide the Grounds of Opposition dated 21 st May 2025. The respondents contended that this Honourable Court has no jurisdiction to transfer the cases filed in Kabiyet as they are void ab initio for having been filed in a court with no jurisdiction. They posited that the only option available to the applicants is to withdraw the suits before the Magistrate’s Court and file fresh suits in the proper forum. In the premises, the respondents averred that the instant application is a non-starter, incompetent, fatally defective and an abuse of the court process as Section 18 of the Civil Procedure Act does not apply to cases filed in a court with no jurisdiction.
[5] Directions were given herein on the 10 th June 2026 that the application be canvassed by way of written submissions. Accordingly, the applicants relied on their written submissions dated 25 th October 2025. They hinged their application on Article 159(2)(d) of the Constitution and Section 18 of the Civil Procedure Act and submitted that the Court has powers under that provision to transfer the subject suits from Kabiyet Law Courts to Kapsabet Law Courts. They also relied on the Overriding Objectives as set out in Sections 1A and 1B of the Civil Procedure Rules and pointed out that it is not disputed that the accident in question occurred within Kapsabet Township. They submitted that to strike out the suits for want of jurisdiction would occasion unnecessary delay and subject them to undue expense; hence their prayer for transfer under Section 18 of the Civil Procedure Act.
[6] The applicants relied on various authorities, including Lekuruito & another v Nottingham Mwangi & another [2018] eKLR, Waweru v Prime Auto Solutions Limited [2024] eKLR and SGA Guarding Kenya Ltd v Manipal International Printing Press Limited [2025] KEHC 13830 (KLR) among others in urging the Court to find that their application is merited and that no prejudice will be suffered by the respondents.
[7] The respondents relied on their written submissions dated 17 th June 2025. They submitted that the application is legally untenable, fatally incompetent and falls short of the applicable statutory standards governing transfer of suits under Section 18 of the Civil Procedure Act. Accordingly, they proposed the following issues for determination:
[a] Whether the Court can lawfully invoke its powers under Section 18 of the Civil Procedure Act to transfer suits that were filed in a court devoid of jurisdiction.
[b] Who should bear the costs of the application.
[8] The respondents were in agreement that the applicants’ cause of action bear a direct and proximate nexus to the Kapsabet area. It wsas therefore their argument that in line with Section 15 of the Civil Procedure Act, the subject suits ought to have been filed in Kapsabet Magistrate’s Court within the limits of whose jurisdiction the cause of action arose and as the place where they, as defendants, reside. The respondents therefore contended that, in so far as the suits were improperly and unlawfully instituted in a court that lacks territorial jurisdiction to entertain them, they are incapable of being salvaged by way of transfer to another court.
[9] In support of their arguments, the respondents relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR, Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, Joseph Muthee Kamau & another v David Mwangi Gichure & another [213] eKLR, Phoenix of East Africa Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR and Yano & another v Mogona [2024] KEHC 5733 (KLR) They contended that the law does not permit an incompetent suit to be resuscitated through procedural or equitable routes; and therefore the only course of action available to the applicants is to withdraw the defective suits and file fresh suits before the Kapsabet Chief Magistrate’s Court. Accordingly, they prayed for the dismissal of the application dated 24 th February 2025.
[10] I have considered the application before Court, the response filed thereto by the respondents and the written submissions filed by learned counsel for the parties. Although the respondents questioned whether the Court has jurisdiction to transfer the subject suits from Kabiyet Magistrate’s Court to Kapsabit Chief Magistrate’s Court for hearing and determination, jurisdiction of the Court is not in dispute.
[11] In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) held as follows on the issue of jurisdiction:
68. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
[12] Article 165(6) of the Constitution of Kenya provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In addition, Section 18 of the Civil Procedure Act empowers this court to transfer a case from one subordinate court to another. The provision states:
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter-
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
[13] Therefore, the jurisdiction of this Court to transfer cases from one subordinate court to another or to itself or vice versa needs not be belaboured. The only issue for determination is whether the subject suits are amenable to transfer in the manner proposed by the applicants.
[14] The Civil Procedure Act provides the necessary guidance as to the place of suing at Sections 11 to 15 thereof. In particular, Section 15 provides that:
Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
(b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
[15] It is plain therefore that the subject suits ought to have been filed at the Kapsabet Magistrate’s Court. The question to pose is whether, having been filed before the Kabiyet Magistrate’s Court, the cases are capable of transfer under Section 18 of the Civil Procedure Rules.
[16] It is now trite that a suit filed in a court without jurisdiction is null and void, and therefore incapable of being transferred under S ection 18 of the Civil Procedure Rules. Indeed, in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel (supra) the Court of Appeal held:
“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation.”
[17] Similarly in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“ When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[18] The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[19] It is noteworthy however that the jurisdiction of the Kabiyet Court is not challenged from the prism of Section 7 of the Magistrate’s Court Act, which provides for jurisdiction of magistrates on the basis of the value of the subject matter, but from the purview of Section 15 aforestated; which engenders efficient and cost-effective resolution of disputes. That is why s for convenience and efficiency purposes. I am therefore in agreement with the position taken by Hon. Majanja J, in Betty Nyamusi Machora v Betty Nyanduko Makori [2018] eKLR stated as follows concerning section15 of the Civil Procedure Act:
…In my view, section 15 of the CPA provides for convenient forums of instituting a suit. It does not divest the Magistrates courts of jurisdiction, hence a defendant who is dissatisfied with the place where a suit has been filed is entitled to invoke the High court to transfer the suit to the appropriate forum. This position still obtains repeal from the Magistrates Court Act. The Magistrate Courts Act, 2015 provides for the jurisdiction of the Magistrates court on the basis of subject matter/value, it does not limit territorial jurisdiction of the Magistrates court”.
[20] It is therefore my finding that the subject suits were indeed filed in a court with jurisdiction to handle the same, but for purposes of Section 15, the most appropriate forum is the Kabsabet Magistrate’s Court where the cause of action arose, and where the defendants reside. This therefore is a matter falling squarely within the purview of Section 18 of the Civil Procedure Act.
[21] In the result, the Notice of Motion dated 24 th February 2025 is hereby allowed and orders granted as follows:
[a] An order be and is hereby issued for the transfer of Kabiyet Chief Magistrates Civil Case Numbers E054 of 2024, E055 of 2024, E056 of 2024, E057 of 2024 and E058 of 2024, filed by various plaintiffs against the two respondents, In Motion Regional Logistics Ltd and Ibrahim Alami to Kapsabet Chief Magistrate's court for hearing and determination.
[b] Each party to bear own costs of the application.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 30 TH DAY OF JULY 2026
[a] Spent.
[b] That the Court be pleased to order transfer of Kabiyet Chief Magistrates Civil Case Numbers E054 of 2024, E055 of 2024, E056 of 2024, E057 of 2024 and E058 of 2024, filed by various plaintiffs against the two respondents, In Motion Regional Logistics Ltd and Ibrahim Alami to Kapsabet Chief Magistrate's court for hearing and determination.
[c] That the cost of the application be provided for.
[2] The application was premised on the grounds that the cause of action in the above mentioned cases arose from a road traffic accident which occurred on the 23 rd October 2024 in Kapsabet township involving Motor Vehicle Registration Number KCC 107U/ZD 9829; and that the suits were inadvertently filed in Kabiyet Magistrate’s Court; which court does not have the geographical jurisdiction to handle the suits. The applicants further averred that the mistake on the part of their counsel is excusable and can be effectively corrected justly and in a cost-effective manner by way of transfer pursuant to the overriding objectives of this civil procedure.
[3] The application was supported by affidavit sworn by David Ngetich (the 1 st applicant herein) sworn on 24 th February 2025. In essence, the applicants averred that on the 23 rd October, 2024 they were involved in a road traffic accident within Kapsabet township when they were hit and injured by Motor Vehicle Registration Number KCC 107U/ZD 9829. They stated that they reported the accident at Kapsabet Police Station and were issued with Police Abstracts. They consequently instructed counsel to claim recompense from the driver and owner of the subject motor vehicle, but that the suits were mistakenly filed at Kabiyet Magistrates Court instead of Kapsabet Chief Magistrate’s Court.
[4] The application was opposed by the two respondents vide the Grounds of Opposition dated 21 st May 2025. The respondents contended that this Honourable Court has no jurisdiction to transfer the cases filed in Kabiyet as they are void ab initio for having been filed in a court with no jurisdiction. They posited that the only option available to the applicants is to withdraw the suits before the Magistrate’s Court and file fresh suits in the proper forum. In the premises, the respondents averred that the instant application is a non-starter, incompetent, fatally defective and an abuse of the court process as Section 18 of the Civil Procedure Act does not apply to cases filed in a court with no jurisdiction.
[5] Directions were given herein on the 10 th June 2026 that the application be canvassed by way of written submissions. Accordingly, the applicants relied on their written submissions dated 25 th October 2025. They hinged their application on Article 159(2)(d) of the Constitution and Section 18 of the Civil Procedure Act and submitted that the Court has powers under that provision to transfer the subject suits from Kabiyet Law Courts to Kapsabet Law Courts. They also relied on the Overriding Objectives as set out in Sections 1A and 1B of the Civil Procedure Rules and pointed out that it is not disputed that the accident in question occurred within Kapsabet Township. They submitted that to strike out the suits for want of jurisdiction would occasion unnecessary delay and subject them to undue expense; hence their prayer for transfer under Section 18 of the Civil Procedure Act.
[6] The applicants relied on various authorities, including Lekuruito & another v Nottingham Mwangi & another [2018] eKLR, Waweru v Prime Auto Solutions Limited [2024] eKLR and SGA Guarding Kenya Ltd v Manipal International Printing Press Limited [2025] KEHC 13830 (KLR) among others in urging the Court to find that their application is merited and that no prejudice will be suffered by the respondents.
[7] The respondents relied on their written submissions dated 17 th June 2025. They submitted that the application is legally untenable, fatally incompetent and falls short of the applicable statutory standards governing transfer of suits under Section 18 of the Civil Procedure Act. Accordingly, they proposed the following issues for determination:
[a] Whether the Court can lawfully invoke its powers under Section 18 of the Civil Procedure Act to transfer suits that were filed in a court devoid of jurisdiction.
[b] Who should bear the costs of the application.
[8] The respondents were in agreement that the applicants’ cause of action bear a direct and proximate nexus to the Kapsabet area. It wsas therefore their argument that in line with Section 15 of the Civil Procedure Act, the subject suits ought to have been filed in Kapsabet Magistrate’s Court within the limits of whose jurisdiction the cause of action arose and as the place where they, as defendants, reside. The respondents therefore contended that, in so far as the suits were improperly and unlawfully instituted in a court that lacks territorial jurisdiction to entertain them, they are incapable of being salvaged by way of transfer to another court.
[9] In support of their arguments, the respondents relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR, Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, Joseph Muthee Kamau & another v David Mwangi Gichure & another [213] eKLR, Phoenix of East Africa Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR and Yano & another v Mogona [2024] KEHC 5733 (KLR) They contended that the law does not permit an incompetent suit to be resuscitated through procedural or equitable routes; and therefore the only course of action available to the applicants is to withdraw the defective suits and file fresh suits before the Kapsabet Chief Magistrate’s Court. Accordingly, they prayed for the dismissal of the application dated 24 th February 2025.
[10] I have considered the application before Court, the response filed thereto by the respondents and the written submissions filed by learned counsel for the parties. Although the respondents questioned whether the Court has jurisdiction to transfer the subject suits from Kabiyet Magistrate’s Court to Kapsabit Chief Magistrate’s Court for hearing and determination, jurisdiction of the Court is not in dispute.
[11] In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) held as follows on the issue of jurisdiction:
68. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
[12] Article 165(6) of the Constitution of Kenya provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In addition, Section 18 of the Civil Procedure Act empowers this court to transfer a case from one subordinate court to another. The provision states:
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter-
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
[13] Therefore, the jurisdiction of this Court to transfer cases from one subordinate court to another or to itself or vice versa needs not be belaboured. The only issue for determination is whether the subject suits are amenable to transfer in the manner proposed by the applicants.
[14] The Civil Procedure Act provides the necessary guidance as to the place of suing at Sections 11 to 15 thereof. In particular, Section 15 provides that:
Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
(b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
[15] It is plain therefore that the subject suits ought to have been filed at the Kapsabet Magistrate’s Court. The question to pose is whether, having been filed before the Kabiyet Magistrate’s Court, the cases are capable of transfer under Section 18 of the Civil Procedure Rules.
[16] It is now trite that a suit filed in a court without jurisdiction is null and void, and therefore incapable of being transferred under S ection 18 of the Civil Procedure Rules. Indeed, in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel (supra) the Court of Appeal held:
“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation.”
[17] Similarly in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“ When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[18] The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[19] It is noteworthy however that the jurisdiction of the Kabiyet Court is not challenged from the prism of Section 7 of the Magistrate’s Court Act, which provides for jurisdiction of magistrates on the basis of the value of the subject matter, but from the purview of Section 15 aforestated; which engenders efficient and cost-effective resolution of disputes. That is why s for convenience and efficiency purposes. I am therefore in agreement with the position taken by Hon. Majanja J, in Betty Nyamusi Machora v Betty Nyanduko Makori [2018] eKLR stated as follows concerning section15 of the Civil Procedure Act:
…In my view, section 15 of the CPA provides for convenient forums of instituting a suit. It does not divest the Magistrates courts of jurisdiction, hence a defendant who is dissatisfied with the place where a suit has been filed is entitled to invoke the High court to transfer the suit to the appropriate forum. This position still obtains repeal from the Magistrates Court Act. The Magistrate Courts Act, 2015 provides for the jurisdiction of the Magistrates court on the basis of subject matter/value, it does not limit territorial jurisdiction of the Magistrates court”.
[20] It is therefore my finding that the subject suits were indeed filed in a court with jurisdiction to handle the same, but for purposes of Section 15, the most appropriate forum is the Kabsabet Magistrate’s Court where the cause of action arose, and where the defendants reside. This therefore is a matter falling squarely within the purview of Section 18 of the Civil Procedure Act.
[21] In the result, the Notice of Motion dated 24 th February 2025 is hereby allowed and orders granted as follows:
[a] An order be and is hereby issued for the transfer of Kabiyet Chief Magistrates Civil Case Numbers E054 of 2024, E055 of 2024, E056 of 2024, E057 of 2024 and E058 of 2024, filed by various plaintiffs against the two respondents, In Motion Regional Logistics Ltd and Ibrahim Alami to Kapsabet Chief Magistrate's court for hearing and determination.
[b] Each party to bear own costs of the application.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 30 TH DAY OF JULY 2026