1. The Application before court for determination is the Notice of Motion dated 9th July, 2026, expressed to be brought under Sections 1A, 1B, 3A, 7 and 18 of the Civil Procedure Act, Order L Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks for orders that;
a) Spent ..
b) Spent...
c) That the Honourable Court be pleased to transfer MILIMANI SMALL CLAIMS COURT CASE NO. E1981 OF 2026 to the CHIEF MAGISTRATES COURT AT MILIMANI, Nairobi for hearing and determination; and
d) That costs of this Application be provided for.
2. The grounds upon which the Application is brought are that on 9th July, 2026, the Adjudicator, Honourable N. Muliro expressed the view that the Court ‘might’ lack jurisdiction to hear and determine the claim and consequently directed parties to file written submissions on the issue of jurisdiction. The Honourable Adjudicator has reserved his Ruling on the matter for 28th July, 2026.
3. The suit before the Small Claims Court is a liquidated material damage claim arising from a road traffic accident that occurred within Tena Estate in Nairobi County.
4. It is the Applicant’s contention that unless proceedings in Milimani SCCC E1981 of 2026 are stayed, the ruling will result in dismissal of the claim, thereby prejudicing the Applicant, since the claim will be time barred and cannot be re filed in another Court. The Applicant states that it is in the intertest of justice that the matter is transferred as prayed.
5. The Notice of Motion is supported by the Affidavit sworn by Mwai Muthoni, Advocate, on 9th July, 2026. He reiterates the grounds in support of the Application and attached the statement of claim in SCCC E1981 of 2026, and a previous ruling (in SCCC E1620 of 2026) by the same Adjudicator, in which he struck out a suit involving substantially similar claims as the current suit for want of jurisdiction.
6. Though served with a hearing notice for this Application, the Respondents did not file any response to the same. Learned Counsel for the Applicant orally submitted on the Application on 17th July, 2026, when it came up for hearing.
7. I have considered the Motion taking into account the grounds relied upon, the affidavit evidence, the annexures thereto and the oral submissions of learned counsel on record for the Applicant.
8. The single issue for determination in this Application is whether this Court should stay the proceedings pending before the SCC in Case No. E1981 OF 2026, while the issue of jurisdiction is pending ruling on 28th July, 2026 before the Adjudicator.
9. In Owners of Motor Vessel “Lillian S” -v- Caltex Oil (Kenya) Ltd 1989 KLR 1, the Court of Appeal held;
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.”
10. It is on the basis of the above holding that the issue of whether a Court has jurisdiction to entertain a matter, must of necessity be determined at any stage of a suit and indeed at the earliest opportunity.
11. In the present matter, the Applicant is not asking this Court to determine whether or not the Small Claims Court has jurisdiction to hear and determine the rights of the parties in Milimani SCCC E1981 of 2026.
12. The Applicant’s position, which Counsel on record reiterated during his oral submissions, is that he filed the suit at the SCC in good faith and on the basis of Section 12 of the Small Claims Court Act which confers jurisdiction upon the SCC to determine claims for compensation for loss or damage to property, subject to the Court’s pecuniary jurisdiction.
13. There is admission that the Adjudicator directed parties to file submissions on the issue of jurisdiction before reserving the ruling on 28th July, 2026. The parties were therefore accorded an opportunity to be heard on this fundamental issue that has the potential effect of determining the fate of an entire suit pending before the SCC.
14. Be it as it may, I find that the grounds upon which this Application is based are speculative. The Applicant states that the Adjudicator will dismiss the suit. In the premises the Applicant is inviting this Court to pre-empt the outcome of the ruling to be delivered on 28th July 2026 by the Small Claims Court and on that basis stay proceedings and transfer the suit to the Personal Injury and Material Damage Division in the Milimani Commercial Chief Magistrate’s Court.
15. This Court’s view is that the issue at hand is a pending ruling on the question of jurisdiction. In my view the proper thing to do is to first allow the SCC to pronounce itself on the issue of jurisdiction before intervention by this Court. If aggrieved, the Applicant will be at liberty to exercise his right of appeal and or review as may be appropriate.
16. Whereas this court has supervisory roles over subordinate Courts, it should not entertain applications which are intended to undermine pending proceedings unless there is clear demonstration that the subordinate Court is acting in a manner that will obstruct the course of justice.
17. In the present Application, there is no clear allegation that the SCC has no jurisdiction to entertain the suit before it to require this Court to interfere with its proceedings.
18. The other question that would arise is whether this Court can grant the order for transfer of Milimani SCCC E1981 of 2026 to the Milimani Commercial Chief Magistrate’s Court.
19. In the case of David Kabunga v Zikarega & 4 others (Kampala HCC No. 36 of 1995) which was cited with approval in the case of GKK v ANK & another [2021] eKLR, the Court stated as follows-
“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 a 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. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused…” (emphasis added).
25. Whereas, I fully associate myself with the above holding, this court has previously held in the case of HCMISC App No E525 OF 2026 that transfer of a matter when the same is pending ruling on the question of jurisdiction is premature and speculative. Just like in the mentioned case, the Adjudicator in the instant matter, is yet to find that he lacks jurisdiction.
20. The Applicant has drawn this Court’s attention to a previous ruling by the Adjudicator seized of the instant matter, where he found that the SCC has no jurisdiction to handle material damage claims and proceeded to strike out the suit based on his interpretation of the High Court Judgment in the case of James Muriithi Gathayia V Attorney General &2 others (Petition numberE008 &E010 OF 2024.
21. Though the Applicant is apprehensive the Adjudicator will strike out the suit based on his past determination in a similar matter, this court takes the same position that the issue on whether or not the SCC has jurisdiction is not before this Court for determination. That issue is before the Adjudicator and a ruling reserved for 28th July, 2026. At the moment, there is no express superior court determination that the SCC does not have jurisdiction to handle material damage claims. However, that does not stop the SCC Adjudicator(s) from determining the issue based on their interpretation of the Gathayia case.
22. It follows therefore that this court can only intervene, if the ruling of the Adjudicator is challenged at the Superior Court. For now, the outcome of the said ruling remains speculative. That speculation in my view is not sufficient enough to warrant this Court’s intervention as requested in this Application. The anticipated ruling may be appealed against and or reviewed as may be appropriate. Though that process may reasonably involve delay, inconvenience and expense, the above finding is consistent with the orderliness of court proceedings, which allow matters to be determined at the lowest level and progressed to the superior Courts where circumstances demand. In the foregoing the issue of transfer of the suit at this stage is not tenable.
23. In light of the above, the Notice of Motion dated 9th July, 2026 is hereby disallowed with no order as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22nd DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
MS. KARIUKI HB FOR MWAI FOR THE APPLICANT.
NO APPEARANCE FOR THE RESPONDENT.
COURT ASSISTANT: AGGREY.
a) Spent ..
b) Spent...
c) That the Honourable Court be pleased to transfer MILIMANI SMALL CLAIMS COURT CASE NO. E1981 OF 2026 to the CHIEF MAGISTRATES COURT AT MILIMANI, Nairobi for hearing and determination; and
d) That costs of this Application be provided for.
2. The grounds upon which the Application is brought are that on 9th July, 2026, the Adjudicator, Honourable N. Muliro expressed the view that the Court ‘might’ lack jurisdiction to hear and determine the claim and consequently directed parties to file written submissions on the issue of jurisdiction. The Honourable Adjudicator has reserved his Ruling on the matter for 28th July, 2026.
3. The suit before the Small Claims Court is a liquidated material damage claim arising from a road traffic accident that occurred within Tena Estate in Nairobi County.
4. It is the Applicant’s contention that unless proceedings in Milimani SCCC E1981 of 2026 are stayed, the ruling will result in dismissal of the claim, thereby prejudicing the Applicant, since the claim will be time barred and cannot be re filed in another Court. The Applicant states that it is in the intertest of justice that the matter is transferred as prayed.
5. The Notice of Motion is supported by the Affidavit sworn by Mwai Muthoni, Advocate, on 9th July, 2026. He reiterates the grounds in support of the Application and attached the statement of claim in SCCC E1981 of 2026, and a previous ruling (in SCCC E1620 of 2026) by the same Adjudicator, in which he struck out a suit involving substantially similar claims as the current suit for want of jurisdiction.
6. Though served with a hearing notice for this Application, the Respondents did not file any response to the same. Learned Counsel for the Applicant orally submitted on the Application on 17th July, 2026, when it came up for hearing.
7. I have considered the Motion taking into account the grounds relied upon, the affidavit evidence, the annexures thereto and the oral submissions of learned counsel on record for the Applicant.
8. The single issue for determination in this Application is whether this Court should stay the proceedings pending before the SCC in Case No. E1981 OF 2026, while the issue of jurisdiction is pending ruling on 28th July, 2026 before the Adjudicator.
9. In Owners of Motor Vessel “Lillian S” -v- Caltex Oil (Kenya) Ltd 1989 KLR 1, the Court of Appeal held;
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.”
10. It is on the basis of the above holding that the issue of whether a Court has jurisdiction to entertain a matter, must of necessity be determined at any stage of a suit and indeed at the earliest opportunity.
11. In the present matter, the Applicant is not asking this Court to determine whether or not the Small Claims Court has jurisdiction to hear and determine the rights of the parties in Milimani SCCC E1981 of 2026.
12. The Applicant’s position, which Counsel on record reiterated during his oral submissions, is that he filed the suit at the SCC in good faith and on the basis of Section 12 of the Small Claims Court Act which confers jurisdiction upon the SCC to determine claims for compensation for loss or damage to property, subject to the Court’s pecuniary jurisdiction.
13. There is admission that the Adjudicator directed parties to file submissions on the issue of jurisdiction before reserving the ruling on 28th July, 2026. The parties were therefore accorded an opportunity to be heard on this fundamental issue that has the potential effect of determining the fate of an entire suit pending before the SCC.
14. Be it as it may, I find that the grounds upon which this Application is based are speculative. The Applicant states that the Adjudicator will dismiss the suit. In the premises the Applicant is inviting this Court to pre-empt the outcome of the ruling to be delivered on 28th July 2026 by the Small Claims Court and on that basis stay proceedings and transfer the suit to the Personal Injury and Material Damage Division in the Milimani Commercial Chief Magistrate’s Court.
15. This Court’s view is that the issue at hand is a pending ruling on the question of jurisdiction. In my view the proper thing to do is to first allow the SCC to pronounce itself on the issue of jurisdiction before intervention by this Court. If aggrieved, the Applicant will be at liberty to exercise his right of appeal and or review as may be appropriate.
16. Whereas this court has supervisory roles over subordinate Courts, it should not entertain applications which are intended to undermine pending proceedings unless there is clear demonstration that the subordinate Court is acting in a manner that will obstruct the course of justice.
17. In the present Application, there is no clear allegation that the SCC has no jurisdiction to entertain the suit before it to require this Court to interfere with its proceedings.
18. The other question that would arise is whether this Court can grant the order for transfer of Milimani SCCC E1981 of 2026 to the Milimani Commercial Chief Magistrate’s Court.
19. In the case of David Kabunga v Zikarega & 4 others (Kampala HCC No. 36 of 1995) which was cited with approval in the case of GKK v ANK & another [2021] eKLR, the Court stated as follows-
“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 a 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. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused…” (emphasis added).
25. Whereas, I fully associate myself with the above holding, this court has previously held in the case of HCMISC App No E525 OF 2026 that transfer of a matter when the same is pending ruling on the question of jurisdiction is premature and speculative. Just like in the mentioned case, the Adjudicator in the instant matter, is yet to find that he lacks jurisdiction.
20. The Applicant has drawn this Court’s attention to a previous ruling by the Adjudicator seized of the instant matter, where he found that the SCC has no jurisdiction to handle material damage claims and proceeded to strike out the suit based on his interpretation of the High Court Judgment in the case of James Muriithi Gathayia V Attorney General &2 others (Petition numberE008 &E010 OF 2024.
21. Though the Applicant is apprehensive the Adjudicator will strike out the suit based on his past determination in a similar matter, this court takes the same position that the issue on whether or not the SCC has jurisdiction is not before this Court for determination. That issue is before the Adjudicator and a ruling reserved for 28th July, 2026. At the moment, there is no express superior court determination that the SCC does not have jurisdiction to handle material damage claims. However, that does not stop the SCC Adjudicator(s) from determining the issue based on their interpretation of the Gathayia case.
22. It follows therefore that this court can only intervene, if the ruling of the Adjudicator is challenged at the Superior Court. For now, the outcome of the said ruling remains speculative. That speculation in my view is not sufficient enough to warrant this Court’s intervention as requested in this Application. The anticipated ruling may be appealed against and or reviewed as may be appropriate. Though that process may reasonably involve delay, inconvenience and expense, the above finding is consistent with the orderliness of court proceedings, which allow matters to be determined at the lowest level and progressed to the superior Courts where circumstances demand. In the foregoing the issue of transfer of the suit at this stage is not tenable.
23. In light of the above, the Notice of Motion dated 9th July, 2026 is hereby disallowed with no order as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22nd DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
MS. KARIUKI HB FOR MWAI FOR THE APPLICANT.
NO APPEARANCE FOR THE RESPONDENT.
COURT ASSISTANT: AGGREY.