Background and Introduction
1. By an application dated 11th November 2024, the plaintiffs seek the withdrawal of Milimani CMCC E3794 of 2022 to this court for hearing and determination. They contend that the lower court is no longer the appropriate forum for determination of the dispute as the pecuniary jurisdiction of the court has since been outstripped by the amendment of the plaint dated 20th July 2022 to reflect the market value of the suit property.
2. The application is opposed by way of a replying affidavit sworn on 13th November 2024 by WAMBANI DEYA, the 1st respondent’s Legal Manager. The 1st respondent (the Bank) argues that the application is merely an afterthought aimed at circumventing justice, specifically to avoid the hearing and determination of a pending application, dated 12th August 2024, seeking to dismiss the suit for want of prosecution.
3. The Bank argues that the applicants filed the suit at the trial court on 20th July 2022 along with an application seeking injunctive relief to prevent interference with the suit property, which was charged to secure a loan facility of Kshs. 1,000,000/=. This application was granted. However, after obtaining injunctive relief, the applicants allegedly took no further action, prompting the Bank to file an application for dismissal of the suit for want of prosecution.
4. As evidence that the applicants were merely attempting to circumvent the course of justice, the Bank claims that the applicants purported to file an amended plaint dated 28th October 2024, without leave of the court and after pleadings had already closed. The Bank also argues that at the time it sought to exercise its statutory power of sale, the market value of the suit property was Kshs. 1,000,000/=, as indicated in a valuation report that remains uncontested. Additionally, that as of 3rd November 2022, the applicants had an outstanding loan balance and arrears totaling Kshs. 899,403/=. The Bank emphasizes that the loan has remained unpaid for over six years, raising concerns that the debt could eventually exceed the value of the security.
Analysis and Determination
5. I have carefully considered the pleadings, responses, submissions and caselaw cited by the parties. As correctly noted, the power conferred under Section 18(1)(b) of the Civil Procedure Act grants this court discretion to transfer matters for hearing and determination. Like all discretionary powers, it must be exercised judiciously and based on proper grounds being established.
6. In the Ugandan case of David Kabungu V Zikarenga & 4 Others, Kampala HCC No. 36 of 1995, the court, while interpreting a provision similar to our Section 18(1), observed:
“What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction.”
7. The interest of justice is a crucial factor in such determinations. This court has previously held that if there is doubt as to whether, in all the circumstances, it would be appropriate to order a transfer, the application must be refused. (see Kiura V Ireri & 6 Others, [2022] KEELC 15552 (KLR).
8. The Bank takes issue with the purported amendment of the plaint by the applicants. It is trite law that once pleadings have closed, any amendment requires leave of the court, by dint of Order 8 Rule 3 of the Civil Procedure Rules. The plaintiffs have not provided any evidence that such leave was sought and granted. In fact, they do not deny that no leave was obtained; instead, they have remained silent on the issue. As a result, the purported amended plaint is irregularly before the court and cannot be considered in making this determination.
9. This, coupled with the fact that the applicants initially filed the suit in the lower court, obtained injunctive orders, and then failed to take further action for now more than two years, casts further doubt on the intention behind this belated application. I agree with the Bank that the amendment, which seeks to reflect an increased market value of the property, appears to be a tactical move to artificially raise the value of the suit.
10. Moreover, the original plaint clearly states that the secured loan facility was Kshs. 1,000,000/=. The valuation report attached to the Bank’s documents, dated 16th May 2022 indicates that the suit property had a market value of Kshs. 1,000,000/= and a forced sale value of Kshs. 750,000/=. The plaintiffs have not provided any evidence to support their claim that the property is now valued at Kshs. 25,000,000/=.
11. Even if this were true, the relevant amount in dispute is the outstanding loan balance. The Bank statements attached to the Bank’s documents confirm that as of 3rd November 2022, the outstanding loan stood at Kshs. 899,403/=, a figure that remains uncontested. The claim amount falls well within the lower court’s pecuniary jurisdiction of Kshs. 20,000,000/=.
Disposition
12. Accordingly, the application dated 11th November 2024 seeking the withdrawal of Milimani CMCC E3794 of 2022 to this court for hearing and determination is dismissed with costs to the 1st respondent.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 23RD DAY OF MAY 2025.
F. MUGAMBI
JUDGE
1. By an application dated 11th November 2024, the plaintiffs seek the withdrawal of Milimani CMCC E3794 of 2022 to this court for hearing and determination. They contend that the lower court is no longer the appropriate forum for determination of the dispute as the pecuniary jurisdiction of the court has since been outstripped by the amendment of the plaint dated 20th July 2022 to reflect the market value of the suit property.
2. The application is opposed by way of a replying affidavit sworn on 13th November 2024 by WAMBANI DEYA, the 1st respondent’s Legal Manager. The 1st respondent (the Bank) argues that the application is merely an afterthought aimed at circumventing justice, specifically to avoid the hearing and determination of a pending application, dated 12th August 2024, seeking to dismiss the suit for want of prosecution.
3. The Bank argues that the applicants filed the suit at the trial court on 20th July 2022 along with an application seeking injunctive relief to prevent interference with the suit property, which was charged to secure a loan facility of Kshs. 1,000,000/=. This application was granted. However, after obtaining injunctive relief, the applicants allegedly took no further action, prompting the Bank to file an application for dismissal of the suit for want of prosecution.
4. As evidence that the applicants were merely attempting to circumvent the course of justice, the Bank claims that the applicants purported to file an amended plaint dated 28th October 2024, without leave of the court and after pleadings had already closed. The Bank also argues that at the time it sought to exercise its statutory power of sale, the market value of the suit property was Kshs. 1,000,000/=, as indicated in a valuation report that remains uncontested. Additionally, that as of 3rd November 2022, the applicants had an outstanding loan balance and arrears totaling Kshs. 899,403/=. The Bank emphasizes that the loan has remained unpaid for over six years, raising concerns that the debt could eventually exceed the value of the security.
Analysis and Determination
5. I have carefully considered the pleadings, responses, submissions and caselaw cited by the parties. As correctly noted, the power conferred under Section 18(1)(b) of the Civil Procedure Act grants this court discretion to transfer matters for hearing and determination. Like all discretionary powers, it must be exercised judiciously and based on proper grounds being established.
6. In the Ugandan case of David Kabungu V Zikarenga & 4 Others, Kampala HCC No. 36 of 1995, the court, while interpreting a provision similar to our Section 18(1), observed:
“What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction.”
7. The interest of justice is a crucial factor in such determinations. This court has previously held that if there is doubt as to whether, in all the circumstances, it would be appropriate to order a transfer, the application must be refused. (see Kiura V Ireri & 6 Others, [2022] KEELC 15552 (KLR).
8. The Bank takes issue with the purported amendment of the plaint by the applicants. It is trite law that once pleadings have closed, any amendment requires leave of the court, by dint of Order 8 Rule 3 of the Civil Procedure Rules. The plaintiffs have not provided any evidence that such leave was sought and granted. In fact, they do not deny that no leave was obtained; instead, they have remained silent on the issue. As a result, the purported amended plaint is irregularly before the court and cannot be considered in making this determination.
9. This, coupled with the fact that the applicants initially filed the suit in the lower court, obtained injunctive orders, and then failed to take further action for now more than two years, casts further doubt on the intention behind this belated application. I agree with the Bank that the amendment, which seeks to reflect an increased market value of the property, appears to be a tactical move to artificially raise the value of the suit.
10. Moreover, the original plaint clearly states that the secured loan facility was Kshs. 1,000,000/=. The valuation report attached to the Bank’s documents, dated 16th May 2022 indicates that the suit property had a market value of Kshs. 1,000,000/= and a forced sale value of Kshs. 750,000/=. The plaintiffs have not provided any evidence to support their claim that the property is now valued at Kshs. 25,000,000/=.
11. Even if this were true, the relevant amount in dispute is the outstanding loan balance. The Bank statements attached to the Bank’s documents confirm that as of 3rd November 2022, the outstanding loan stood at Kshs. 899,403/=, a figure that remains uncontested. The claim amount falls well within the lower court’s pecuniary jurisdiction of Kshs. 20,000,000/=.
Disposition
12. Accordingly, the application dated 11th November 2024 seeking the withdrawal of Milimani CMCC E3794 of 2022 to this court for hearing and determination is dismissed with costs to the 1st respondent.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 23RD DAY OF MAY 2025.
F. MUGAMBI
JUDGE