Introduction
1. Before this Court is the Applicant’s Notice of Motion dated 26th June 2026 brought under Section 18(1)(b)(ii) of the Civil Procedure Act (Cap 21). The Applicant, GA Insurance Limited, seeks orders to withdraw Milimani Small Claims Commercial Case No. SCCCOMM/E5556 of 2026 from the Small Claims Court at Nairobi and transfer it to the Chief Magistrate’s Court at Milimani (Commercial Division) for hearing and disposal.
2. The application is opposed by the Respondent, Antara Health Limited, through Grounds of Opposition and a Replying Affidavit sworn by Beldina Omondi on 29th June 2026.
Background
3. The Respondent filed a claim at the Milimani Small Claims Court seeking Kshs. 424,462/=, being an outstanding unpaid balance for healthcare services rendered to the Applicant’s insured members under a Standard Service Agreement dated 14th September 2021.
4. In response, the Applicant filed a Response to the Statement of Claim and introduced a Counterclaim of Kshs. 3,213,188/=. The Applicant alleges that due to erroneous billing, non-billable items, and double-billing, it overpaid the Respondent under the contract.
5. The Applicant now moves this Court for a transfer, contending that since the Small Claims Court's pecuniary jurisdiction is statutorily capped at Kshs. 1,000,000/= under Section 12 of the Small Claims Court Act, that court is statutorily disabled from determining its Counterclaim. The Applicant argues that if the trial proceeds in the lower court, it will be barred by the doctrine of res judicata (Section 7 of the Civil Procedure Act) and the rule against splitting claims from ever recovering the overpaid sums in a separate suit.
6. The Respondent, on its part, contends that the application is a textbook example of a collateral attack and a dilatory tactic. It submits that the Applicant repeatedly acknowledged balances due in past correspondence and only engineered this massive, unparticularized Counterclaim at the eleventh hour to scuttle an imminent trial. The Respondent further argues that the Applicant improperly bypassed the subordinate court by failing to raise its jurisdictional objections there first.
7. The Application was canvassed by way of written submissions. The Applicant, through the law firm of Munene Wambugu & Kiplagat Advocates, filed submissions dated 6th July 2026, whereas the Respondent’s Advocates – Adede & Co. Advocates filed submissions dated 7th July 2026.
Analysis and Determination
8. Having considered the pleadings, affidavits, and rival written submissions, the Court finds that the primary issue for determination is whether the Applicant has established sufficient grounds for this Court to exercise its discretion under section 13(3) of the Small Claims Court Act by withdrawing and transferring the suit.
9. It is settled law that Jurisdiction is the lifeblood of any judicial proceeding. As settled by the Court of Appeal in the locus classicus Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything; without it, a court must down tools immediately.
10. There is no dispute that Section 18 of the Civil Procedure Act indeed empowers the High Court to withdraw and transfer a case instituted in a subordinate court on application of any of the parties or on its own motion. For the court to grant an order of transfer, the applicant must satisfy the court as to the reasons for such an order.
11. The Court in the case GKK V. ANK (2021) eKLR had opportunity to consider the provisions of Section 18 of Cap 21 as follows:
“It was held in the Ugandan case of DAVID KABUNGU VS ZIKARENGA HCCC NO. 36 OF 1995 that
Section 18 (1) (b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even Suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice. 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… It is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted.”
12. In the case of Hanzhou Agrochemicals Industries Ltd v Panda Flowers Ltd [2012] eKLR, the court held that:
“In my view, which view I gather from authorities and from the law. The court should consider such factors as the motive and character of the proceedings, the nature of the relief of remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case.”
13. In the present matter, the Respondent’s claim is for Kshs. 424,462/=. There is no dispute that this sum falls squarely within the statutory boundary of the Small Claims Court, and that the Respondent competently moved the court to benefit from the summary and expedited nature of that forum.
14. The Applicant now attempts to displace this properly filed claim by presenting a Counterclaim of Kshs. 3,213,188/=.
15. I do not think that is the proper procedure. The Applicant cannot in law be permitted to unilaterally remove the Respondent’s claim from the jurisdiction of the Small Claims Court. The claim before the Small Claims Court does not belong to the Applicant. It is that of the Respondent who has elected to benefit from the expedited procedure, statutorily availed under the Small Claims Act. There is nothing in law preventing the Applicant from instituting its claim (the alleged counter-claim) against the Respondent in a Court with the requisite jurisdiction.
16. If this Court were to adopt a rule that the mere filing by a defendant of a counterclaim exceeding that court's pecuniary jurisdiction automatically entitles a defendant to a transfer under Section 18, the entire statutory architecture of the Small Claims Court would be compromised. Any defendant seeking to escape the swift timeline of the Small Claims Court could easily manufacture an unparticularized counterclaim exceeding Kshs. 1,000,000/= to paralyze the claimant’s access to speedy justice. This cannot be what the legislature intended.
17. In Kenya Breweries Limited & another v Mbote Beer Distributors Limited [2025] KEHC 4122 (KLR), FN Muchemi J, while dismissing an application substantially similar to the present application, stated as follows:
“In the circumstances, this court cannot has not been convinced that there are sufficient grounds to transfer the claim. It is said that the Small Claims Court SCC COMM No. E1007 of 2023 lacked jurisdiction to entertain the counterclaim having exceeded the pecuniary jurisdiction of the Small Claims Court. The respondent argues that the known debt between the parties amounts to KSh.1,031,183.40 which was not denied at the time the parties were exchanging correspondence. The contract between the parties as regards the debt in question had ended and the parties moved on and resumed their business relationship. In my view, the counter claim seems to be an after thought on part of the applicant. It has not been denied that the alleged amount owing in the intended counter-claim is the subject of a new contract and can be claimed in a fresh suit.”
18. The Applicant relied heavily on Section 7 of the Civil Procedure Act and the rule in Henderson v Henderson, arguing it will be forever estopped from litigating its overpayment if the adjudicator resolves the primary claim.
19. This argument is legally flawed and premature. As rightly pointed out by the Respondent, res judicata strictly presupposes the existence of a former suit between the same parties that has been heard and finally determined on its merits. No such final determination exists here.
20. Furthermore, the rule against splitting claims under Order 3 Rule 4 of the Civil Procedure Rules and Section 14 of the Small Claims Court Act applies strictly to plaintiffs or claimants who chop up a single cause of action into piecemeal litigations to harass an opponent. It does not prevent a defendant from filing a separate, independent recovery suit in a court of competent jurisdiction if its cross-claim falls outside the pecuniary limits of the primary summary court.
21. If the Applicant genuinely believes it has a sustainable, audit-backed claim for Kshs. 3,213,188/= against the Respondent for breach of contract or unjust enrichment, it is at absolute liberty to file a standard civil suit at the Chief Magistrate’s Court or the High Court. It does not require the destruction or transfer of the Respondent’s distinct, small debt collection case to do so.
22. The upshot of the foregoing is that the Applicant has failed to demonstrate sufficient cause for the exercise of this Court's discretionary jurisdiction under section 13(3) of the Small Claims Court Act.
23. Accordingly, the Notice of Motion dated 26th June 2026 is hereby dismissed.
24. The interim stay, if any, is vacated.
25. Milimani Small Claims Court Case No. SCCCOMM/E5556 of 2026 shall proceed before the Small Claims Court to hearing and determination.
26. The Applicant shall bear the costs of the application.
27. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 8TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before this Court is the Applicant’s Notice of Motion dated 26th June 2026 brought under Section 18(1)(b)(ii) of the Civil Procedure Act (Cap 21). The Applicant, GA Insurance Limited, seeks orders to withdraw Milimani Small Claims Commercial Case No. SCCCOMM/E5556 of 2026 from the Small Claims Court at Nairobi and transfer it to the Chief Magistrate’s Court at Milimani (Commercial Division) for hearing and disposal.
2. The application is opposed by the Respondent, Antara Health Limited, through Grounds of Opposition and a Replying Affidavit sworn by Beldina Omondi on 29th June 2026.
Background
3. The Respondent filed a claim at the Milimani Small Claims Court seeking Kshs. 424,462/=, being an outstanding unpaid balance for healthcare services rendered to the Applicant’s insured members under a Standard Service Agreement dated 14th September 2021.
4. In response, the Applicant filed a Response to the Statement of Claim and introduced a Counterclaim of Kshs. 3,213,188/=. The Applicant alleges that due to erroneous billing, non-billable items, and double-billing, it overpaid the Respondent under the contract.
5. The Applicant now moves this Court for a transfer, contending that since the Small Claims Court's pecuniary jurisdiction is statutorily capped at Kshs. 1,000,000/= under Section 12 of the Small Claims Court Act, that court is statutorily disabled from determining its Counterclaim. The Applicant argues that if the trial proceeds in the lower court, it will be barred by the doctrine of res judicata (Section 7 of the Civil Procedure Act) and the rule against splitting claims from ever recovering the overpaid sums in a separate suit.
6. The Respondent, on its part, contends that the application is a textbook example of a collateral attack and a dilatory tactic. It submits that the Applicant repeatedly acknowledged balances due in past correspondence and only engineered this massive, unparticularized Counterclaim at the eleventh hour to scuttle an imminent trial. The Respondent further argues that the Applicant improperly bypassed the subordinate court by failing to raise its jurisdictional objections there first.
7. The Application was canvassed by way of written submissions. The Applicant, through the law firm of Munene Wambugu & Kiplagat Advocates, filed submissions dated 6th July 2026, whereas the Respondent’s Advocates – Adede & Co. Advocates filed submissions dated 7th July 2026.
Analysis and Determination
8. Having considered the pleadings, affidavits, and rival written submissions, the Court finds that the primary issue for determination is whether the Applicant has established sufficient grounds for this Court to exercise its discretion under section 13(3) of the Small Claims Court Act by withdrawing and transferring the suit.
9. It is settled law that Jurisdiction is the lifeblood of any judicial proceeding. As settled by the Court of Appeal in the locus classicus Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything; without it, a court must down tools immediately.
10. There is no dispute that Section 18 of the Civil Procedure Act indeed empowers the High Court to withdraw and transfer a case instituted in a subordinate court on application of any of the parties or on its own motion. For the court to grant an order of transfer, the applicant must satisfy the court as to the reasons for such an order.
11. The Court in the case GKK V. ANK (2021) eKLR had opportunity to consider the provisions of Section 18 of Cap 21 as follows:
“It was held in the Ugandan case of DAVID KABUNGU VS ZIKARENGA HCCC NO. 36 OF 1995 that
Section 18 (1) (b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even Suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice. 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… It is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted.”
12. In the case of Hanzhou Agrochemicals Industries Ltd v Panda Flowers Ltd [2012] eKLR, the court held that:
“In my view, which view I gather from authorities and from the law. The court should consider such factors as the motive and character of the proceedings, the nature of the relief of remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case.”
13. In the present matter, the Respondent’s claim is for Kshs. 424,462/=. There is no dispute that this sum falls squarely within the statutory boundary of the Small Claims Court, and that the Respondent competently moved the court to benefit from the summary and expedited nature of that forum.
14. The Applicant now attempts to displace this properly filed claim by presenting a Counterclaim of Kshs. 3,213,188/=.
15. I do not think that is the proper procedure. The Applicant cannot in law be permitted to unilaterally remove the Respondent’s claim from the jurisdiction of the Small Claims Court. The claim before the Small Claims Court does not belong to the Applicant. It is that of the Respondent who has elected to benefit from the expedited procedure, statutorily availed under the Small Claims Act. There is nothing in law preventing the Applicant from instituting its claim (the alleged counter-claim) against the Respondent in a Court with the requisite jurisdiction.
16. If this Court were to adopt a rule that the mere filing by a defendant of a counterclaim exceeding that court's pecuniary jurisdiction automatically entitles a defendant to a transfer under Section 18, the entire statutory architecture of the Small Claims Court would be compromised. Any defendant seeking to escape the swift timeline of the Small Claims Court could easily manufacture an unparticularized counterclaim exceeding Kshs. 1,000,000/= to paralyze the claimant’s access to speedy justice. This cannot be what the legislature intended.
17. In Kenya Breweries Limited & another v Mbote Beer Distributors Limited [2025] KEHC 4122 (KLR), FN Muchemi J, while dismissing an application substantially similar to the present application, stated as follows:
“In the circumstances, this court cannot has not been convinced that there are sufficient grounds to transfer the claim. It is said that the Small Claims Court SCC COMM No. E1007 of 2023 lacked jurisdiction to entertain the counterclaim having exceeded the pecuniary jurisdiction of the Small Claims Court. The respondent argues that the known debt between the parties amounts to KSh.1,031,183.40 which was not denied at the time the parties were exchanging correspondence. The contract between the parties as regards the debt in question had ended and the parties moved on and resumed their business relationship. In my view, the counter claim seems to be an after thought on part of the applicant. It has not been denied that the alleged amount owing in the intended counter-claim is the subject of a new contract and can be claimed in a fresh suit.”
18. The Applicant relied heavily on Section 7 of the Civil Procedure Act and the rule in Henderson v Henderson, arguing it will be forever estopped from litigating its overpayment if the adjudicator resolves the primary claim.
19. This argument is legally flawed and premature. As rightly pointed out by the Respondent, res judicata strictly presupposes the existence of a former suit between the same parties that has been heard and finally determined on its merits. No such final determination exists here.
20. Furthermore, the rule against splitting claims under Order 3 Rule 4 of the Civil Procedure Rules and Section 14 of the Small Claims Court Act applies strictly to plaintiffs or claimants who chop up a single cause of action into piecemeal litigations to harass an opponent. It does not prevent a defendant from filing a separate, independent recovery suit in a court of competent jurisdiction if its cross-claim falls outside the pecuniary limits of the primary summary court.
21. If the Applicant genuinely believes it has a sustainable, audit-backed claim for Kshs. 3,213,188/= against the Respondent for breach of contract or unjust enrichment, it is at absolute liberty to file a standard civil suit at the Chief Magistrate’s Court or the High Court. It does not require the destruction or transfer of the Respondent’s distinct, small debt collection case to do so.
22. The upshot of the foregoing is that the Applicant has failed to demonstrate sufficient cause for the exercise of this Court's discretionary jurisdiction under section 13(3) of the Small Claims Court Act.
23. Accordingly, the Notice of Motion dated 26th June 2026 is hereby dismissed.
24. The interim stay, if any, is vacated.
25. Milimani Small Claims Court Case No. SCCCOMM/E5556 of 2026 shall proceed before the Small Claims Court to hearing and determination.
26. The Applicant shall bear the costs of the application.
27. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 8TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent