RULING
1. The Applicants have filed a Notice of Motion application dated 5 th March 2026 seeking for orders of withdrawal of Ijara Mobile Court Commercial Case No. MCCC/E001 of 2026 and transfer the same to the High Court at Garsen for hearing and determination.
2. The application is based on the ground that at the time of filing the suit the value of the subject matter was Ksh.14,700,000/= which fell within the pecuniary jurisdiction of the Magistrates court. That subsequent to the filing of the suit the Applicants obtained new documentary evidence including motor vehicle Inspection and Valuation Reports and NTSA Reports confirming registered ownership of motor vehicles of registration number KDP 940P, KBA 294N, KCE 652Y, and KCL 652N. That the Valuation Reports indicated that the said motor vehicles were valued atKsh.5,850,000/=
3. That subsequently the trial court made a ruling for the Applicants to amend the claim to include the 2 nd Respondent in the suit. That upon amending the claim and incorporating the new evidence on the value of the motor vehicles, the value of the subject matter came to Ksh.20,550,000/= which value exceeds the pecuniary jurisdiction of the Magistrates Court. That the Respondents have filed an application seeking to strike out the Applicants` suit on pecuniary grounds.
4. The Applicants contend that striking out the suit will occasion them grave injustice. That the transfer sought will ensure that the suit is determined by a court with the requisite pecuniary jurisdiction.
5. The application was opposed by the Respondent on the ground that the same is brought in bad faith. That at the time of filing the suit before the magistrate`s court the court lacked pecuniary jurisdiction over the suit. That the Applicants instituted the suit seeking special damages of Ksh.14,700,000/= and a claim over motor vehicles whose value was stated at Ksh,12,500,000/=. Therefore, that the total value of the suit pleaded amounted to Ksh.27,200,000/=. That thereafter the Applicants filed valuation reports of the motor vehicles which revised the value of the same to Ksh.5,850,000/=. That even then the value of the subject matter of Ksh.20,500,000/= exceeded the pecuniary jurisdiction of the trial court which is Ksh,15,000,000/=. Therefore, that the suit is defective for want of pecuniary jurisdiction.
6. It was averred that though section 18 of the Civil Procedure Acy bestows upon this court the power to transfer suits from one court to another, the court of which the matter is pending must in the first instance have jurisdiction over the matter. That a suit instituted and/ or is pending before a court lacking jurisdiction is void ab initio and the only remedy available is to withdraw the suit and file a fresh suit in a court with competent jurisdiction. Therefore, that the suit ought to be struck out with costs to the Respondents.
7. The application was argued by way of written submissions of the respective counsels appearing for the parties.
Applicants` Submissions
8. The applicants submitted that this court has wide and unfettered discretion under section 18(1) (b) (i) of the Civil Procedure Act to withdraw and transfer proceedings from a subordinate court to it for trial or disposal. Reference was made to the case od Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel (2016) KECA 250 (KLR) where the Court of Appeal affirmed that the High Court has broad discretionary power under section 18 of the Civil Procedure Act to transfer suits between courts. That the court observed that this discretion must be exercised judiciously and in furtherance of justice, particularly where maintaining the suit in the lower court would defeat substantive justice.
9. It was submitted that a transfer should be made to prevent a multiplicity of suits. Reference was in this respect made to the case of David Kabungu v Zikarenga & others. That in Kagenyi v Musiramo & another, the court held that where jurisdictional issues arise after filing, the court may transfer the suit to a competent forum. That in Hangzhou Agrochemicals Industries Limited v Panda Flowers Limited, the High Court emphasized that the power of transfer should be exercised in a manner that promotes substantive justice.
Respondents` submissions
10. The Respondents submitted that the original claim did not fall within the pecuniary jurisdiction of the trial court in that the total value of the subject matter was Ksh.27,299,000/= which was in excess of the pecuniary jurisdiction of the trial magistrate of Ksh.15,000,000/=. That even with its revised valuation of the motor vehicles the claim stood at Ksh.20,550,000/=, comprising of special damages of Ksh.14,700,000/= and Ksh.5,850,000/= being the assessed value of the motor vehicles. That the claim remained beyond the pecuniary jurisdiction of the trial court. That the suit having been instituted before a court lacking requisite pecuniary jurisdiction, is a nullity ab initio and is therefore incapable of transfer. The Respondents made reliance on the case of Livingstone Maina Ombete v Kenya Power & Lighting Company Limited (2017) KECA624 ( KLR) where it was held that:
In addressing the second issue, we need to be very clear by stating that the issue as to whether the High Court has power to transfer a suit from one subordinate court to another can only be contemplated if the court in which the suit was filed in the first instance has jurisdiction. This is so because a suit filed before a court without jurisdiction is a nullity, and it would remain a nullity even if transferred to another court. Transferring such a case would not clothe it with jurisdiction.
11. Further reliance was placed in the case of Korir v Chekwony & another (2023) KELLC 21671 (KLR) where the court held that it was illegal for the High Court in exercise of its powers under section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit.
12. It was submitted that the application was filed with the sole purpose of defeating the Respondents application for striking out the suit for want of jurisdiction. That this reeks of bad faith and disentitles the Applicants to the exercise of this court`s discretion. The Respondents in this respect cited the case of Equity Bank Limited v Bruce Mutie Mutuku (supra) where the Court of Appeal observed that an application to transfer made in the High Court with the intention to circumvent the Respondent`s objection to the suit which was still pending before the trial court was not conduct that can be approved of a party seeking the exercise of the court`s discretion in his favour.
13. It was submitted that the application for transfer is misconceived, incompetent and an abuse of the court process and ought to be dismissed with costs to the Respondents.
Analysis and determination
14. I have considered the grounds in support of the application, the grounds in opposition thereto and the submissions by the respective counsels for the parties. The issue for determination is whether this court should allow the application for transfer of the matter from the trial court to the High Court for hearing and determination.
15. The High Court has wide discretion under section 18 (1) of the Civil Procedure Act to transfer cases from the subordinate courts. The section provides that:
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage –
(a) …..; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter –
(i) . . . ; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (emphasis ours)
16. Counsel for the Respondents submit that the High Court can only exercise the power of transfer where the magistrates court had in the first instance the pecuniary jurisdiction to entertain the suit when the suit was filed before the subordinate court. That in this case the trial court did not have the pecuniary jurisdiction as the value of the subject matter when the case was filed was Ksh.27,200,000/= against the pecuniary jurisdiction of the trial court of Ksh.15,000,000/=. That even after amending revising the value of the motor vehicles to Ksh.5,850,000/= the value of the subject matter stood at Ksh,20,500,000/= which was still beyond the jurisdiction of the trial court.
17. The Applicants on the other heard argued that the value of the subject matter when the suit was filed was Ksh.14,700,000/= which fell within the jurisdiction of the trial court. That it is after the motor vehicles were valued that the value of the subject matter came to Ksh.20,500/= which exceeded the pecuniary jurisdiction of the trial court.
18. The trial Magistrate in this case who is of the rank of a Senior Principal Magistrate has a pecuniary civil jurisdiction of Ksh.15,000,000/=. It is evident from the pleadings as contained in the plaint that the Applicants made a claim of special damages of Ksh.14,700,000/=. They also sought for some orders in respect of 4 motor vehicles. Though they did not specify the value of the motor vehicles in their final prayers they, claimed in paragraph 11 of the plaint that the buying price of the motor vehicles was Ksh.12,500,000/=. This meant that the total claim was for Ksh.27,200,000/= though not stated in the final prayers of the plaint. Even then, it is apparent that had the Applicants done a valuation of the motor vehicles at the time of filing the suit, the claim stood beyond the pecuniary jurisdiction of the trial court of Ksh.15,000,000/=. This is considering the special damages of Ksh.14,700,000/= that was being claimed and the unspecified value of the motor vehicles. Though their value at the time of filing suit was unspecified, they were part of the claim and therefore their value would push the claim beyond the pecuniary jurisdiction of the trial court. In the premises, I hold that the claim at the time of filing suit stood in excess of the pecuniary jurisdiction of the trial court. The suit was thus filed in a court without jurisdiction to entertain it.
19. The law is that a suit a suit filed in a court without jurisdiction is a nullity and a court cannot transfer a nullity, see the Court of Appeal decision in Livingstone Maina Ombete v Kenya Power & Lighting Company Limited (supra). I agree with the submission by counsel for the Respondents that the only remedy open to the Applicants is to withdraw the suit and file a fresh one at the High Court.
20. In view of the foregoing, I do not find merit in the application dated 5 th March 2026 and the same is dismissed with costs to the Respondents.
Delivered, dated and signed at NAIROBI this 16 th day of April 2026
J. N. NJAGI
JUDGE
In the presence of:
Mr. Abdullahi Dido for Applicants
Miss Amuka HB for Mr. Muhamud for Respondent
Court Assistant - Jumaa
Misc. CCOMMERCIAL CASE NO. E001 of 2026 – Ruling Page 1 of 7
1. The Applicants have filed a Notice of Motion application dated 5 th March 2026 seeking for orders of withdrawal of Ijara Mobile Court Commercial Case No. MCCC/E001 of 2026 and transfer the same to the High Court at Garsen for hearing and determination.
2. The application is based on the ground that at the time of filing the suit the value of the subject matter was Ksh.14,700,000/= which fell within the pecuniary jurisdiction of the Magistrates court. That subsequent to the filing of the suit the Applicants obtained new documentary evidence including motor vehicle Inspection and Valuation Reports and NTSA Reports confirming registered ownership of motor vehicles of registration number KDP 940P, KBA 294N, KCE 652Y, and KCL 652N. That the Valuation Reports indicated that the said motor vehicles were valued atKsh.5,850,000/=
3. That subsequently the trial court made a ruling for the Applicants to amend the claim to include the 2 nd Respondent in the suit. That upon amending the claim and incorporating the new evidence on the value of the motor vehicles, the value of the subject matter came to Ksh.20,550,000/= which value exceeds the pecuniary jurisdiction of the Magistrates Court. That the Respondents have filed an application seeking to strike out the Applicants` suit on pecuniary grounds.
4. The Applicants contend that striking out the suit will occasion them grave injustice. That the transfer sought will ensure that the suit is determined by a court with the requisite pecuniary jurisdiction.
5. The application was opposed by the Respondent on the ground that the same is brought in bad faith. That at the time of filing the suit before the magistrate`s court the court lacked pecuniary jurisdiction over the suit. That the Applicants instituted the suit seeking special damages of Ksh.14,700,000/= and a claim over motor vehicles whose value was stated at Ksh,12,500,000/=. Therefore, that the total value of the suit pleaded amounted to Ksh.27,200,000/=. That thereafter the Applicants filed valuation reports of the motor vehicles which revised the value of the same to Ksh.5,850,000/=. That even then the value of the subject matter of Ksh.20,500,000/= exceeded the pecuniary jurisdiction of the trial court which is Ksh,15,000,000/=. Therefore, that the suit is defective for want of pecuniary jurisdiction.
6. It was averred that though section 18 of the Civil Procedure Acy bestows upon this court the power to transfer suits from one court to another, the court of which the matter is pending must in the first instance have jurisdiction over the matter. That a suit instituted and/ or is pending before a court lacking jurisdiction is void ab initio and the only remedy available is to withdraw the suit and file a fresh suit in a court with competent jurisdiction. Therefore, that the suit ought to be struck out with costs to the Respondents.
7. The application was argued by way of written submissions of the respective counsels appearing for the parties.
Applicants` Submissions
8. The applicants submitted that this court has wide and unfettered discretion under section 18(1) (b) (i) of the Civil Procedure Act to withdraw and transfer proceedings from a subordinate court to it for trial or disposal. Reference was made to the case od Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel (2016) KECA 250 (KLR) where the Court of Appeal affirmed that the High Court has broad discretionary power under section 18 of the Civil Procedure Act to transfer suits between courts. That the court observed that this discretion must be exercised judiciously and in furtherance of justice, particularly where maintaining the suit in the lower court would defeat substantive justice.
9. It was submitted that a transfer should be made to prevent a multiplicity of suits. Reference was in this respect made to the case of David Kabungu v Zikarenga & others. That in Kagenyi v Musiramo & another, the court held that where jurisdictional issues arise after filing, the court may transfer the suit to a competent forum. That in Hangzhou Agrochemicals Industries Limited v Panda Flowers Limited, the High Court emphasized that the power of transfer should be exercised in a manner that promotes substantive justice.
Respondents` submissions
10. The Respondents submitted that the original claim did not fall within the pecuniary jurisdiction of the trial court in that the total value of the subject matter was Ksh.27,299,000/= which was in excess of the pecuniary jurisdiction of the trial magistrate of Ksh.15,000,000/=. That even with its revised valuation of the motor vehicles the claim stood at Ksh.20,550,000/=, comprising of special damages of Ksh.14,700,000/= and Ksh.5,850,000/= being the assessed value of the motor vehicles. That the claim remained beyond the pecuniary jurisdiction of the trial court. That the suit having been instituted before a court lacking requisite pecuniary jurisdiction, is a nullity ab initio and is therefore incapable of transfer. The Respondents made reliance on the case of Livingstone Maina Ombete v Kenya Power & Lighting Company Limited (2017) KECA624 ( KLR) where it was held that:
In addressing the second issue, we need to be very clear by stating that the issue as to whether the High Court has power to transfer a suit from one subordinate court to another can only be contemplated if the court in which the suit was filed in the first instance has jurisdiction. This is so because a suit filed before a court without jurisdiction is a nullity, and it would remain a nullity even if transferred to another court. Transferring such a case would not clothe it with jurisdiction.
11. Further reliance was placed in the case of Korir v Chekwony & another (2023) KELLC 21671 (KLR) where the court held that it was illegal for the High Court in exercise of its powers under section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit.
12. It was submitted that the application was filed with the sole purpose of defeating the Respondents application for striking out the suit for want of jurisdiction. That this reeks of bad faith and disentitles the Applicants to the exercise of this court`s discretion. The Respondents in this respect cited the case of Equity Bank Limited v Bruce Mutie Mutuku (supra) where the Court of Appeal observed that an application to transfer made in the High Court with the intention to circumvent the Respondent`s objection to the suit which was still pending before the trial court was not conduct that can be approved of a party seeking the exercise of the court`s discretion in his favour.
13. It was submitted that the application for transfer is misconceived, incompetent and an abuse of the court process and ought to be dismissed with costs to the Respondents.
Analysis and determination
14. I have considered the grounds in support of the application, the grounds in opposition thereto and the submissions by the respective counsels for the parties. The issue for determination is whether this court should allow the application for transfer of the matter from the trial court to the High Court for hearing and determination.
15. The High Court has wide discretion under section 18 (1) of the Civil Procedure Act to transfer cases from the subordinate courts. The section provides that:
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage –
(a) …..; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter –
(i) . . . ; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (emphasis ours)
16. Counsel for the Respondents submit that the High Court can only exercise the power of transfer where the magistrates court had in the first instance the pecuniary jurisdiction to entertain the suit when the suit was filed before the subordinate court. That in this case the trial court did not have the pecuniary jurisdiction as the value of the subject matter when the case was filed was Ksh.27,200,000/= against the pecuniary jurisdiction of the trial court of Ksh.15,000,000/=. That even after amending revising the value of the motor vehicles to Ksh.5,850,000/= the value of the subject matter stood at Ksh,20,500,000/= which was still beyond the jurisdiction of the trial court.
17. The Applicants on the other heard argued that the value of the subject matter when the suit was filed was Ksh.14,700,000/= which fell within the jurisdiction of the trial court. That it is after the motor vehicles were valued that the value of the subject matter came to Ksh.20,500/= which exceeded the pecuniary jurisdiction of the trial court.
18. The trial Magistrate in this case who is of the rank of a Senior Principal Magistrate has a pecuniary civil jurisdiction of Ksh.15,000,000/=. It is evident from the pleadings as contained in the plaint that the Applicants made a claim of special damages of Ksh.14,700,000/=. They also sought for some orders in respect of 4 motor vehicles. Though they did not specify the value of the motor vehicles in their final prayers they, claimed in paragraph 11 of the plaint that the buying price of the motor vehicles was Ksh.12,500,000/=. This meant that the total claim was for Ksh.27,200,000/= though not stated in the final prayers of the plaint. Even then, it is apparent that had the Applicants done a valuation of the motor vehicles at the time of filing the suit, the claim stood beyond the pecuniary jurisdiction of the trial court of Ksh.15,000,000/=. This is considering the special damages of Ksh.14,700,000/= that was being claimed and the unspecified value of the motor vehicles. Though their value at the time of filing suit was unspecified, they were part of the claim and therefore their value would push the claim beyond the pecuniary jurisdiction of the trial court. In the premises, I hold that the claim at the time of filing suit stood in excess of the pecuniary jurisdiction of the trial court. The suit was thus filed in a court without jurisdiction to entertain it.
19. The law is that a suit a suit filed in a court without jurisdiction is a nullity and a court cannot transfer a nullity, see the Court of Appeal decision in Livingstone Maina Ombete v Kenya Power & Lighting Company Limited (supra). I agree with the submission by counsel for the Respondents that the only remedy open to the Applicants is to withdraw the suit and file a fresh one at the High Court.
20. In view of the foregoing, I do not find merit in the application dated 5 th March 2026 and the same is dismissed with costs to the Respondents.
Delivered, dated and signed at NAIROBI this 16 th day of April 2026
J. N. NJAGI
JUDGE
In the presence of:
Mr. Abdullahi Dido for Applicants
Miss Amuka HB for Mr. Muhamud for Respondent
Court Assistant - Jumaa
Misc. CCOMMERCIAL CASE NO. E001 of 2026 – Ruling Page 1 of 7