1. The matter before this Court is an ex-parte application by way of a Notice of Motion dated 16th September, 2026.
2. The Applicant approaches the Court seeking the following orders:
1. THAT, this Honourable Court be pleased to certify this application as urgent and proceed to hear the application ex-parte in the first instance.
2. THAT, the suit MCCOMMSU NO. E1010 OF 2026, HFCB LIMITED vs. Peter Kilonzo Mwanza be transferred from the Milimani Commercial Magistrates Courts to the Machakos Magistrates Court.
3. THAT, consequent upon (prayer 2) above the Applicant be granted an extension of time of fourteen (14) days to extract summons for service upon the Respondent.
3. The application is grounded on the face of the Motion and is further supported by the evidence contained in the Affidavit in Support sworn on 15th September, 2025 by one Lipwop Sharon Chepkurui.
4. The Applicant contends that it intended to file MCCOMMSU NO. E1010 OF 2026 at the Chief Magistrate's Court in Machakos, which is the proper forum with jurisdiction over the subject matter.
5. However, due to a genuine and bona fide clerical mistake by the Advocate's clerk, the pleadings were mistakenly presented and filed at the Chief Magistrate's Court in Nairobi.
6. The error was discovered when the Applicant's clerk was submitting the summons for extraction. Consequently, the Applicant seeks a transfer to the proper Court and an extension of time to extract summons.
7. This Court has carefully considered the application and noted from the onset that the application has been brought ex-parte. Given that the summons have yet to issue and the Respondent has not been drawn into the proceedings, proceeding ex-parte in the first instance is appropriate and occasions no prejudice to the Respondent. The Respondent will still enjoy his full right of reply once served with the extracted summons in the proper forum.
8. Section 18 of the Civil Procedure Act empowers the High Court with broad, discretionary jurisdiction to withdraw any suit pending in a subordinate court and transfer it to another Court of competent jurisdiction.
9. This discretion is well established in our jurisprudence. As was persuasively enunciated in Livingstone Maina Ombete v Kenya Power & Lighting Company Limited [2017] KECA 624 (KLR) the power of the High Court to transfer a suit under Section 18 is aimed at facilitating substantive justice. This is particularly more so where an action is commenced in the wrong forum through an inadvertent but honest mistake.
10. Furthermore, guided by the "Oxygen Principles" enshrined in Sections 1A and 1B of the Civil Procedure Act, this Court is mandated to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Striking out the suit for refiling would merely inflict unnecessary costs and delay upon the Applicant for a clerical misstep, thereby defeating the overriding objective of the Act.
11. In the premises, this Court is persuaded that the mistake was bona fide and should not be visited upon the Applicant. The delay in extracting summons was a direct consequence of the jurisdictional error, thereby warranting an extension of time under Order 50 Rule 6 of the Civil Procedure Rules.
Determination
12. Accordingly, the Notice of Motion application dated 16th September, 2026 is merited and is hereby allowed in the following terms:
1. THAT, this Honourable Court HEREBY certifies this application as urgent and proceeds to hear the application ex-parte in the first instance.
2. THAT, the suit MCCOMMSU NO. E1010 OF 2026, HFCB LIMITED vs. Peter Kilonzo Mwanza is HEREBY transferred from the Milimani Commercial Magistrates Courts to the Machakos Magistrates Court.
3. THAT, consequent upon (prayer 2) above the Applicant is HEREBY granted an extension of time of fourteen (14) days to extract summons for service upon the Respondent.
4. THAT there be no orders as to costs
13. THAT this file is HEREBY marked as closed.
14. It is so ordered.
DATED, SIGNED and DELIVERED at MILIMANI this 17th September, 2026.
JUSTICE NJOROGE BENJAMIN K.
JUDGE
2. The Applicant approaches the Court seeking the following orders:
1. THAT, this Honourable Court be pleased to certify this application as urgent and proceed to hear the application ex-parte in the first instance.
2. THAT, the suit MCCOMMSU NO. E1010 OF 2026, HFCB LIMITED vs. Peter Kilonzo Mwanza be transferred from the Milimani Commercial Magistrates Courts to the Machakos Magistrates Court.
3. THAT, consequent upon (prayer 2) above the Applicant be granted an extension of time of fourteen (14) days to extract summons for service upon the Respondent.
3. The application is grounded on the face of the Motion and is further supported by the evidence contained in the Affidavit in Support sworn on 15th September, 2025 by one Lipwop Sharon Chepkurui.
4. The Applicant contends that it intended to file MCCOMMSU NO. E1010 OF 2026 at the Chief Magistrate's Court in Machakos, which is the proper forum with jurisdiction over the subject matter.
5. However, due to a genuine and bona fide clerical mistake by the Advocate's clerk, the pleadings were mistakenly presented and filed at the Chief Magistrate's Court in Nairobi.
6. The error was discovered when the Applicant's clerk was submitting the summons for extraction. Consequently, the Applicant seeks a transfer to the proper Court and an extension of time to extract summons.
7. This Court has carefully considered the application and noted from the onset that the application has been brought ex-parte. Given that the summons have yet to issue and the Respondent has not been drawn into the proceedings, proceeding ex-parte in the first instance is appropriate and occasions no prejudice to the Respondent. The Respondent will still enjoy his full right of reply once served with the extracted summons in the proper forum.
8. Section 18 of the Civil Procedure Act empowers the High Court with broad, discretionary jurisdiction to withdraw any suit pending in a subordinate court and transfer it to another Court of competent jurisdiction.
9. This discretion is well established in our jurisprudence. As was persuasively enunciated in Livingstone Maina Ombete v Kenya Power & Lighting Company Limited [2017] KECA 624 (KLR) the power of the High Court to transfer a suit under Section 18 is aimed at facilitating substantive justice. This is particularly more so where an action is commenced in the wrong forum through an inadvertent but honest mistake.
10. Furthermore, guided by the "Oxygen Principles" enshrined in Sections 1A and 1B of the Civil Procedure Act, this Court is mandated to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Striking out the suit for refiling would merely inflict unnecessary costs and delay upon the Applicant for a clerical misstep, thereby defeating the overriding objective of the Act.
11. In the premises, this Court is persuaded that the mistake was bona fide and should not be visited upon the Applicant. The delay in extracting summons was a direct consequence of the jurisdictional error, thereby warranting an extension of time under Order 50 Rule 6 of the Civil Procedure Rules.
Determination
12. Accordingly, the Notice of Motion application dated 16th September, 2026 is merited and is hereby allowed in the following terms:
1. THAT, this Honourable Court HEREBY certifies this application as urgent and proceeds to hear the application ex-parte in the first instance.
2. THAT, the suit MCCOMMSU NO. E1010 OF 2026, HFCB LIMITED vs. Peter Kilonzo Mwanza is HEREBY transferred from the Milimani Commercial Magistrates Courts to the Machakos Magistrates Court.
3. THAT, consequent upon (prayer 2) above the Applicant is HEREBY granted an extension of time of fourteen (14) days to extract summons for service upon the Respondent.
4. THAT there be no orders as to costs
13. THAT this file is HEREBY marked as closed.
14. It is so ordered.
DATED, SIGNED and DELIVERED at MILIMANI this 17th September, 2026.
JUSTICE NJOROGE BENJAMIN K.
JUDGE