Background and Introduction
1. This ruling determines the application dated 27th September 2024, in which the applicant seeks an order to transfer Milimani CMCC No. 5544 of 2022 from the Chief Magistrate’s Court at Milimani to the High Court (Commercial Division) for hearing and determination. The motion is expressed to be brought under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 3B and 18 of the Civil Procedure Act (Cap 21), Article 159 of the Constitution of Kenya 2010. The application is premised on an increase in the claim amount, beyond the Magistrate’s pecuniary jurisdiction post-filing.
2. The applicant submits that the suit was properly filed in the Chief Magistrate’s Court in 2022. At the time, the claim fell within the court’s pecuniary limits of Kshs. 20,000,000/= for a Chief Magistrate’s Court as set by Section 7(1)(a) of the Magistrates’ Courts Act 2015. However, following amendments to the pleadings, the claim has escalated to Kshs. 26,044,354/=, which exceeds the subordinate court’s jurisdiction. The applicant avers that this change of circumstances necessitates transferring the suit to the High Court (Commercial Division), which has unlimited pecuniary jurisdiction.
3. The respondents oppose the application and urge that it should be dismissed for lack of merit and as an abuse of the court’s process. It is their position that the application is an attempt to bypass their preliminary objection dated 31st July 2024 which ought to be determined first. According to them, the Magistrate’s Court never had competent jurisdiction over the dispute ab initio.
4. They assert that the suit, by virtue of the monetary relief sought, ought to have been filed in the High Court from the start. In their view, the amendment of the pleadings to a sum beyond the magistrate’s pecuniary limit retroactively demonstrates that the suit was in the wrong forum. Consequently, the respondents argue that the entire suit is a nullity for want of jurisdiction and there is nothing to transfer.
5. Learned counsel for the respondents cites Section 18 of the Civil Procedure Act and several authorities for the proposition that a court cannot transfer a suit that was filed without jurisdiction. The respondents emphasize that jurisdiction is conferred by law, not by consent or procedural maneuvering, and any proceeding instituted in a court lacking jurisdiction is void ab initio.
6. It is argued that Section 18 cannot be invoked to sanctify an incompetent suit through transfer. The respondents also point out that they have already raised a preliminary objection in the lower court challenging jurisdiction. They contend that the present application is a tactical attempt to circumvent that objection and cure a fundamentally defective suit. In their view, entertaining this motion undermines the orderly process and amounts to an abuse of the court’s forum, since a suit which was a nullity from inception cannot be resuscitated by moving it to another court.
Analysis and Determination
7. From the foregoing, the main question for determination is whether this Court should exercise its power under Section 18 of the Civil Procedure Act to withdraw and transfer Milimani CMCC No. 5544 of 2022 to the High Court, given the circumstances. In answering that, the Court must resolve two sub-issues:
i. Whether the subordinate court had jurisdiction over the suit at the time of its filing (and whether the suit as instituted was competent).
ii. If the suit was initially competent but later exceeded the court’s jurisdiction due to amendment, whether the High Court can and should order a transfer to itself for hearing and disposal.
8. It is trite that a court must have jurisdiction at the time a suit is filed for the suit to be sustainable. In the context of magistrates’ courts, Section 7 of the Magistrates’ Courts Act 2015 prescribes the pecuniary limits for the Chief Magistrate’s Court, to where the value of the subject matter does not exceed twenty million shillings. A suit for Kshs. 26 million is therefore beyond a Chief Magistrate’s pecuniary jurisdiction.
9. If such a claim is presented, the best that the Magistrate’s court would do is to down its tools for want of jurisdiction in line with the classic dictum in Owners Of The Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) that “jurisdiction is everything. Without it, a court has no power to make one more step.”
10. Be that as it may, the Civil Procedure Act vests supervisory powers in the High Court to intervene in suits pending before subordinate courts. Section 18(1)(b) provides that
“the High Court may at any stage… withdraw any suit or 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 subordinate court competent to try or dispose of the same…”
11. This section enables the High Court, either on application by a party or suo motu, to ensure that a case is heard in the appropriate forum. In exercising this discretion, the High Court may consider factors such as the convenience of parties, the expeditious delivery of justice, avoidance of multiplicity of suits, and prevention of hardship or injustice. The applicant bears the burden to make out a strong case for transfer. Ultimately, the guiding principle is the interests of justice.
12. A crucial qualifier in Section 18 is that the transfer can only be made to a court competent to try or dispose of the suit. This implies that the case as constituted must be one that the recipient court has jurisdiction to entertain. By necessary inference, if the case was a nullity from the start, by being filed in a court that had no jurisdiction at all, then there is legally no valid suit that can be transferred. Both statute and case law make it clear that a suit filed in a court without jurisdiction is void.
13. Section 16 of the Civil Procedure Act implicitly recognizes that proceedings in the wrong court should not continue and the jurisprudence on this point is abundantly settled.
14. The Court of Appeal in Joseph Muthee Kamau & Another v David Mwangi Gichure & Another [2013] eKLR posed the pertinent question: “is jurisdiction conferred as at the time when the plaint is filed; at the time of hearing; or at the time of judgment? Can jurisdiction be acquired retroactively?” The Court’s answer was unequivocal that jurisdiction must exist at the time of filing the suit and cannot be conferred ex post facto. The court also reaffirmed that where a suit is filed in a court that lacks jurisdiction, it is a nullity.
15. The same principle applies to pecuniary jurisdiction such that if the amount claimed exceeds the court’s limit, the suit is null from the beginning. In Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal again emphatically reaffirmed that
“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied.”
16. In the same vein, the Court, in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR) amongst other decisions has held that it would be illegal for the High Court to employ Section 18 to transfer a suit from a court that had no jurisdiction, as “no competent suit exists that is capable of being transferred.” To do so would amount to this Court clothing itself or another court with jurisdiction that was absent, thereby “muddling up the waters and allowing confusion to reign.”
17. It follows that neither the oxygen overriding objective principle in Sections 1A and 1B nor Article 159 of the Constitution can salvage such a situation, because jurisdiction is fundamental and cannot be circumvented by procedural consent or judicial craft. Simply put, a nullity cannot be transmogrified into a valid action by transfer.
18. The above authorities make it clear that if Milimani CMCC No. 5544 of 2022 was a nullity from the outset, this Court must not transfer it. It is not controverted that the applicant’s amendment on 6th June 2024 increased the claim from an amount within the pecuniary jurisdiction of the Magistrates’ Court to Kshs. 26,044,354/=, which exceeds the court’s jurisdiction under Section 7 of the Magistrates’ Courts Act. As a result, the suit fell outside the magistrates’ court’s jurisdiction, rendering it incompetent. Since the Magistrates’ Court no longer has jurisdiction, the transfer cannot be effected.
Disposition
19. Accordingly, the application dated 27th September 2024 is not merited and the same is dismissed with costs.
DATED, SIGNED AND DELIVERED IN MOMBASA
THIS 17TH DAY OF APRIL 2025
F. MUGAMBI
JUDGE