(EXPARTE) EXTEMPORE RULING
1. I have read and considered the application dated 15/7/2025 (yesterday) under a certificate of urgency. It is said to be urgent because there is a suit – CM ELC NO. E043 of 2021 – in the lower court here in Kitui which is coming for hearing tomorrow (17/7/2025). The lower court is said to have no jurisdiction to hear the matter.
2. The application before this court now is essentially for transfer of the lower court matter from Kitui to Mwingi Law Courts. The applicant, who is the plaintiff in the suit, avers that she has discovered that Kitui Court does not have jurisdiction.
3. Before the application is heard, the applicant would wish that the lower court proceedings be stayed.
4. The Law – see the case of Equity Bank Limited -vs- Bruce Mutie Mutuku T/A Diani Tour & Travel [2016] eKLR – is that a case filed in a court without jurisdiction cannot be transferred to another court with jurisdiction. The reason behind this is that a suit filed in a court without jurisdiction is not a competent suit. An incompetent suit is said to be incapable of being transferred. Such a suit is said to be a nullity in law and whatever is a nullity in the eyes of the law amounts to nothing. You cannot transfer “nothing” to another place.
5. In my view, the best approach for the applicant is to withdraw the matter from the lower court and file it afresh in a court with jurisdiction. This however is a suggestion, not a directive. It is upon the applicant to choose what to do.
6. In view of what I have said hitherto, I think it is necessarily to deal with the application before me in a summary manner. This helps in saving time and expenses for all the parties. The order the court makes is this: The application before me is struck out with no order as to costs.
DATED, SIGNED at KITUI this 16TH DAY OF JULY, 2025.