RULING
1. Before this Court for determination is the Applicant’s Notice of Motion dated 23rd July 2025, brought under the provisions of Sections 1A, 1B, 3A, 11, and 18(1)(a) of the Civil Procedure Act, 2010, Order 31 of the Civil Procedure Rules, 2010, and Articles 50 and 165(3)(a) of the Constitution of Kenya, 2010. The Application seeks the following orders:
(a) THAT this Honourable Court be pleased to grant the Applicant/Intended Plaintiff leave to file a suit against the Respondent/Intended Defendant in the Chief Magistrates Court at Milimani.
(b) THAT the Honourable court be pleased to grant such other orders as may be just in the circumstances and incidental thereto.
(c) THAT costs of this Application be provided for.
Background facts
2. The Application is supported by the Affidavit of Joyce Omalla, sworn on 23rd July 2025. Ms. Omalla is an Advocate of the High Court of Kenya practicing with the firm of Meritad Law Africa LLP, and has the conduct of this matter on behalf of the Applicant. The Respondent, by way of a staff loan application form, applied for a credit facility in the sum of Kenya Shillings One Million, One Hundred and Fifty Thousand (Kshs. 1,150,000/=) from the Applicant. Pursuant to the said application, the Applicant granted the Respondent the loan facility under the terms set out in a Staff Loan Agreement dated 1st February 2018. Under the Agreement, the Respondent undertook to repay the loan in sixty (60) equal monthly instalments via a payroll check-off arrangement.
3. It was an express term of the Loan Agreement that dishonour of any monthly instalment under the check-off arrangement would constitute a breach of contract and would render the entire outstanding loan balance immediately due and payable. In partial fulfilment of her obligations, the Respondent made several remittances via payroll deductions. However, these payments consistently fell short of the agreed monthly instalments, thereby attracting penalties for default.
4. Despite the Applicant’s efforts to engage the Respondent with a view to recovering the outstanding sums amicably, no meaningful progress has been made. The Applicant now seeks legal recourse for what it considers to be a clear breach of the Loan Agreement. As of the date of the Application, the total outstanding balance stands at Kenya Shillings Two Million, One Hundred and Ninety-One Thousand, Nine Hundred and Forty-Seven and Fifty-Four Cents (Kshs. 2,191,947.54), which is within the pecuniary jurisdiction of the Chief Magistrates Court.
5. However, Clause 14 of the said Staff Loan Agreement contains an exclusive jurisdiction clause, providing that any legal action or proceedings arising therefrom shall be filed in the High Court of Kenya, Commercial Division, which court indisputably possesses unlimited jurisdiction to entertain the intended suit. The Applicant nonetheless recognises that, pursuant to Section 11 of the Civil Procedure Act, suits ought to be instituted in the Court of the lowest grade competent to try them. The Applicant further submits that in the interest of judicial economy and the optimal use of limited judicial resources, the matter should be heard before the Chief Magistrates Court.
Issues For Determination
6. This Court has duly considered the Applicant’s application and is of the view that a single issue arises for determination, namely:
a) Whether this Court should grant leave for the transfer of the intended suit from the Superior Court to the Subordinate Court?
Analysis
7. There is power to transfer suit either from the Superior Court to the subordinate Court and vice versa. This is contained in Section 18 of the Civil Procedure Act, which provides as follows: -
18. Power of High Court to withdraw and transfer case instituted in subordinate court
(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.
8. From the foregoing, it is evident that the High Court—together with Courts of equal status—has the jurisdiction to transfer a suit either from itself to a subordinate court, or vice versa, where circumstances so warrant. The existence of this power is not in doubt and is well grounded in law.
9. In this regard, Section 7 of the Magistrates' Courts Act provides as follows:
A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed —
(a)twenty million shillings, where the court is presided over by a chief magistrate;
(b)fifteen million shillings, where the court is presided over by a senior principal magistrate;
(c)ten million shillings, where the court is presided over by a principal magistrate;
(d)seven million shillings, where the court is presided over by a senior resident magistrate; or
(e)five million shillings, where the court is presided over by a resident magistrate.
10. It is evident from the foregoing that the Chief Magistrate’s Court is vested with pecuniary jurisdiction to hear and determine civil claims whose subject matter does not exceed Kenya Shillings Twenty Million (Kshs. 20,000,000/=).
11. This Court in Nyasimi v China Henan International Co-operation Group Co. Ltd (Miscellaneous Suit E007 of 2022) [2023] KEELC 15736 (KLR) (22 February 2023) (Ruling) stated that:
“It will be observed that the above chain of authorities emphasise that for a suit to be capable of being transferred, it first needed to have been filed in a court of competent jurisdiction. This would mean that when the suit was filed, the court had jurisdiction, but circumstances changed so that the court now has no jurisdiction. A classical case is an instance where a Magistrates’ Court station has a Chief Magistrate, who is subsequently transferred without replacement of a Magistrate of equal rank. A party would have filed suit, say for the sum of Kshs. 16,000,000/= in a court with jurisdiction, since the Chief Magistrate was available, but upon his transfer, and if there is no replacement, there would be no other Magistrate to hear the case because the next highest ranking officer, a Senior Principal Magistrate, would, pursuant to Section 7 of the Magistrates’ Court Act, only hear a case with a maximum value of Kshs. 15,000,000/=. Thus for no fault of his own, the party will find himself without a Magistrate with jurisdiction to determine the suit yet when he filed it there was a court with jurisdiction to hear it. Following this school of thought, if one filed a suit seeking, say, kshs. 25,000,000/= in the subordinate court, he would not be entitled to an order of transfer of the suit because the Magistrates’ Court had no jurisdiction in the first instance to hear such a case as it obviously exceeded the pecuniary limits of the court.”
12. Accordingly, while this Court is vested with unlimited original jurisdiction, it equally possesses the power to transfer a matter to a Subordinate Court where the subject matter falls within that Court’s pecuniary competence. In the present case, given that the claim lies within the jurisdictional limits of the Chief Magistrate’s Court, this Court finds it appropriate to grant the orders sought.
Determination
13. In the circumstances, leave is hereby granted to the Applicant to file the intended Plaint before the Chief Magistrates Court at Milimani.
14. There will be no orders as to the costs of this application.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 31ST DAY OF JULY 2025
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Omalla for the Applicants.
Mr. Amos – Court Assistant
1. Before this Court for determination is the Applicant’s Notice of Motion dated 23rd July 2025, brought under the provisions of Sections 1A, 1B, 3A, 11, and 18(1)(a) of the Civil Procedure Act, 2010, Order 31 of the Civil Procedure Rules, 2010, and Articles 50 and 165(3)(a) of the Constitution of Kenya, 2010. The Application seeks the following orders:
(a) THAT this Honourable Court be pleased to grant the Applicant/Intended Plaintiff leave to file a suit against the Respondent/Intended Defendant in the Chief Magistrates Court at Milimani.
(b) THAT the Honourable court be pleased to grant such other orders as may be just in the circumstances and incidental thereto.
(c) THAT costs of this Application be provided for.
Background facts
2. The Application is supported by the Affidavit of Joyce Omalla, sworn on 23rd July 2025. Ms. Omalla is an Advocate of the High Court of Kenya practicing with the firm of Meritad Law Africa LLP, and has the conduct of this matter on behalf of the Applicant. The Respondent, by way of a staff loan application form, applied for a credit facility in the sum of Kenya Shillings One Million, One Hundred and Fifty Thousand (Kshs. 1,150,000/=) from the Applicant. Pursuant to the said application, the Applicant granted the Respondent the loan facility under the terms set out in a Staff Loan Agreement dated 1st February 2018. Under the Agreement, the Respondent undertook to repay the loan in sixty (60) equal monthly instalments via a payroll check-off arrangement.
3. It was an express term of the Loan Agreement that dishonour of any monthly instalment under the check-off arrangement would constitute a breach of contract and would render the entire outstanding loan balance immediately due and payable. In partial fulfilment of her obligations, the Respondent made several remittances via payroll deductions. However, these payments consistently fell short of the agreed monthly instalments, thereby attracting penalties for default.
4. Despite the Applicant’s efforts to engage the Respondent with a view to recovering the outstanding sums amicably, no meaningful progress has been made. The Applicant now seeks legal recourse for what it considers to be a clear breach of the Loan Agreement. As of the date of the Application, the total outstanding balance stands at Kenya Shillings Two Million, One Hundred and Ninety-One Thousand, Nine Hundred and Forty-Seven and Fifty-Four Cents (Kshs. 2,191,947.54), which is within the pecuniary jurisdiction of the Chief Magistrates Court.
5. However, Clause 14 of the said Staff Loan Agreement contains an exclusive jurisdiction clause, providing that any legal action or proceedings arising therefrom shall be filed in the High Court of Kenya, Commercial Division, which court indisputably possesses unlimited jurisdiction to entertain the intended suit. The Applicant nonetheless recognises that, pursuant to Section 11 of the Civil Procedure Act, suits ought to be instituted in the Court of the lowest grade competent to try them. The Applicant further submits that in the interest of judicial economy and the optimal use of limited judicial resources, the matter should be heard before the Chief Magistrates Court.
Issues For Determination
6. This Court has duly considered the Applicant’s application and is of the view that a single issue arises for determination, namely:
a) Whether this Court should grant leave for the transfer of the intended suit from the Superior Court to the Subordinate Court?
Analysis
7. There is power to transfer suit either from the Superior Court to the subordinate Court and vice versa. This is contained in Section 18 of the Civil Procedure Act, which provides as follows: -
18. Power of High Court to withdraw and transfer case instituted in subordinate court
(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.
8. From the foregoing, it is evident that the High Court—together with Courts of equal status—has the jurisdiction to transfer a suit either from itself to a subordinate court, or vice versa, where circumstances so warrant. The existence of this power is not in doubt and is well grounded in law.
9. In this regard, Section 7 of the Magistrates' Courts Act provides as follows:
A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed —
(a)twenty million shillings, where the court is presided over by a chief magistrate;
(b)fifteen million shillings, where the court is presided over by a senior principal magistrate;
(c)ten million shillings, where the court is presided over by a principal magistrate;
(d)seven million shillings, where the court is presided over by a senior resident magistrate; or
(e)five million shillings, where the court is presided over by a resident magistrate.
10. It is evident from the foregoing that the Chief Magistrate’s Court is vested with pecuniary jurisdiction to hear and determine civil claims whose subject matter does not exceed Kenya Shillings Twenty Million (Kshs. 20,000,000/=).
11. This Court in Nyasimi v China Henan International Co-operation Group Co. Ltd (Miscellaneous Suit E007 of 2022) [2023] KEELC 15736 (KLR) (22 February 2023) (Ruling) stated that:
“It will be observed that the above chain of authorities emphasise that for a suit to be capable of being transferred, it first needed to have been filed in a court of competent jurisdiction. This would mean that when the suit was filed, the court had jurisdiction, but circumstances changed so that the court now has no jurisdiction. A classical case is an instance where a Magistrates’ Court station has a Chief Magistrate, who is subsequently transferred without replacement of a Magistrate of equal rank. A party would have filed suit, say for the sum of Kshs. 16,000,000/= in a court with jurisdiction, since the Chief Magistrate was available, but upon his transfer, and if there is no replacement, there would be no other Magistrate to hear the case because the next highest ranking officer, a Senior Principal Magistrate, would, pursuant to Section 7 of the Magistrates’ Court Act, only hear a case with a maximum value of Kshs. 15,000,000/=. Thus for no fault of his own, the party will find himself without a Magistrate with jurisdiction to determine the suit yet when he filed it there was a court with jurisdiction to hear it. Following this school of thought, if one filed a suit seeking, say, kshs. 25,000,000/= in the subordinate court, he would not be entitled to an order of transfer of the suit because the Magistrates’ Court had no jurisdiction in the first instance to hear such a case as it obviously exceeded the pecuniary limits of the court.”
12. Accordingly, while this Court is vested with unlimited original jurisdiction, it equally possesses the power to transfer a matter to a Subordinate Court where the subject matter falls within that Court’s pecuniary competence. In the present case, given that the claim lies within the jurisdictional limits of the Chief Magistrate’s Court, this Court finds it appropriate to grant the orders sought.
Determination
13. In the circumstances, leave is hereby granted to the Applicant to file the intended Plaint before the Chief Magistrates Court at Milimani.
14. There will be no orders as to the costs of this application.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 31ST DAY OF JULY 2025
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Omalla for the Applicants.
Mr. Amos – Court Assistant