1. The Appeal originates from the judgment of the learned Trial Magistrate striking out the appellants suit for want of territorial jurisdiction .The Appellant filed the suit in Nairobi Milimani Magistrates Court vide a plaint dated 15.8.2024 for recovery of ksh 1,794,380/ being the accumulated rent arrears due and payable by the Directorate of Adult Education(Siaya Town of Siaya County) that occupied the rental/commercial premise (from 2012 till 15.8.2021) owned by the Appellants at a monthly rent of kshs 15000/=.The Appellant averred the trial court had territorial jurisdiction to entertain the matter as the offices of the Attorney General enjoy country wide establishment.
2.The Respondent entered appearance, filed statement of defence and raised a preliminary objection dated 8.11.2024 averring want of territorial jurisdiction of the trial court to handle the matter on grounds that the cause of action arose at Siaya County where the suit property is situated and claim being time barred under Public Authorities’ limitations Act (cap 39 laws of kanya.
3.The Appellant testified and closed her case on the 15.5.2025 after the trial court deferred disposal of the preliminary objection set for hearing on 4.2.2025. The Defendant offered no defence at close f proceedings on 15.5. 2025.The learned Trial Magistrate struck out the suit on 3.7.2025 for want of territorial jurisdiction. The Appellant being aggrieved by the decision of the Learned Trial Magistrate filed the appeal vide a Memorandum of Appeal dated 31.7. 2025 citing four grounds of appeal on the face of memorandum of appeal .
4.The Appeal was admitted for hearing and court directed that it be canvassed by way of written submissions. The Appellants filed their submissions dated 14.08.2026 whereas the Respondent filed its submissions dated 28.4.2026 on 28.08.2026.
5. The Appellant submitted that A claim for Kshs.1,794,380.00 arose from accrued rent arrears on account of premises situate in Siaya town /county leased by the Ministry of Education, Directorate of Adult & Continuing Education hence properly instituted against the Attorney-General as the statutory representative of the Government. The Appellant relied on section 12 of the Civil Procedure Act 2010, contending that the suit could be instituted where the Attorney-General carries on business, provided the relief could be obtained through personal obedience. The Appellant submitted that the trial court erred in striking out the suit solely for want of territorial jurisdiction without considering the merits of the case and any defect in place of suing was procedural that could, where appropriate, be addressed through transfer under section 18 of the Civil Procedure Act, rather than striking out the suit placing reliance on the case of Paulo Anyanzwa Kutekha v Steel Structures Limited(2018) kehc where sections 11–15 of the Act were considered regulating place of suing, with transfer or costs available as appropriate remedies.
6.The Respondent contended that section 12 of the Civil Procedure Act,2010 requires suits concerning immovable property to be instituted where the property is situated, namely Siaya law courts in this case. It argued that the proviso to section 12 is inapplicable as the relief sought cannot be entirely obtained through the Defendant’s personal obedience. The Respondent further submits that the Attorney-General’s role as Government’s legal representative does not confer territorial jurisdiction on the Nairobi court citing decided cases including the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd ( 1989) 1klr Waweru v Prime Auto Solutions 1971, Thuo v Rambiti Farm Sawmill Ltd (2025)keelc 8602 and Livingstone Maina Ombete v Kenya Power & Lighting Co. Ltd(2017) keca 624klr , where the Respondent maintained that territorial jurisdiction is statutory and, once absent, the Court must down its tools.
7.Having considered the entire record of Appeal, Memorandum and grounds raised in the appeal so to the noble rival submissions, the following issue arose for determination: -
a) Whether the trial court erred in finding that it lacked territorial jurisdiction to entertain the suit .
b) whether the trial court erred in striking out the suit instead of transferring it to Siaya law court for hearing and determination
c) Whether administrative presence of Attorney general offices country wide clothed the court with territorial jurisdiction to entertain the suit at Nairobi.
d) who to pay costs of the appeal?
8.This Court having been called upon to sit as the first Appellate court never had the chance to hear the evidence of the witness or see her impression or demeanor at the time of trial is mandated to interfere with the findings of the trial court unless the trial court misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice as stated in the case restated in the case of Selle and Another vs Associated Motor Boat Company ltd & others ,(1968)123 citing with approval the case of Shah vs Mbogo (1968)EA93.
9.As to whether the trial court erred in finding that it lacked territorial jurisdiction to entertain the suit Section 12 of the Civil Procedures Act 2010 provides for institution of suits where the subject matter is situated as follows:
“Subject to the pecuniary or other limitations prescribed by any law, suits as follows:
1. for the recovery of immovable property, with or without rent or profits;
2. for the partition of immovable property;
3. for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
4. for the determination of any other right to or interest in immovable property;
5. for compensation for wrong to immovable property;
6. for the recovery of movable property actually under distraint or attachment, where the property is situated in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, o subject to r in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain ”.
10.Section 15 of the civil procedure Act 2010 provides for other suits to be instituted where the defendant resides, or cause of action arises as follows :
a) Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction— (a)the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
b) Any of the Defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
c) The cause of action, wholly or in part, arises.
11.Section 9 of the Magistrates' courts Act 2015 provides for jurisdiction of a magistrate to handle Claims in employment, labour relations claims, land and environment cases so to Section 26 of Environment and land Court Act that mandates gazetted magistrates subject to their pecuniary jurisdiction to handle:
(i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(ii) compulsory acquisition of land;
(iii) land administration and management;
(iv) public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(v) environment and land generally;”
12.From the cited statutory provisions, it is trite that a suit can be filed where the cause of action arose, suit property is situated, Defendant resides or carries on business wholly or partially. The instant suit concerns a claim for rent, repair and redecoration costs in respect of immovable property known as L.R. No. 12045/95, situate in Siaya Town of Siaya County then occupied by the ministry of education directorate of adult and continuing education. The Plaintiffs /Appellants instituted the suit in Nairobi Magistrates court (Milimani Environment and land Court) averring the cause of action arose in Nairobi at paragraph 8 of the plaint.
13.The Defendant(Respondent) was sued in its capacity as the Representative of the State in relation to occupation of the rental premise by Directorate of Adult and continuing county education, Siaya County ,belonging to Plaintiffs/Appellants on account of contractual relationship between the Plaintiffs/Appellants and Ministry of Education -Directorate of Adult &continuing Education ,Siaya County from 2012 till the 15.8.2021 when the Tenant ( Directorate of Adult education-Siaya County )vacated the suit property.
14. Sections 12 &15 of Civil Procedure Act 2010 explicitly provide that suit must be instituted where the subject matter is situated, cause of action arose, Defendants reside or carries on business wholly or partially. The Appellant averred the Respondent has established its offices country wide hence the trial court was clothed with territorial jurisdiction to entertain the matter as filed in Nairobi or transfer it to Siaya law courts for hearing and disposal on merit rather than strike it out. No doubt the Respondent’s offices are spread countrywide though it does not confer exclusive jurisdiction to magistrates’ courts countrywide to hear and determine every matter filed before them by parties against the Respondent in disregard to the statutory provisions of the law that a cause of action be filed within the local limits where the subject matter is situated and/or cause of action arose or where the Defendant operates its business wholly or partially.
15. As pleaded by the Appellant vide the plaint dated 15.8.2024 the cause of action is substantially rooted to Siaya town of Siaya County, where the subject property is situated within the local limits of Siaya law courts and occupied by the Directorate of Adult & continuing Education office-, the government entity that was party to the relevant contractual arrangement carried on its business .This Court therefore finds that the mere presence of an office of the Attorney-General in Nairobi perse did not confer exclusive territorial jurisdiction upon the Nairobi Magistrates’ Court (milimani environment and land court) to hear and determine the instant dispute/case .The learned trial magistrate was right to find and hold that it had no territorial jurisdiction to entertain the matter.
16.As to whether the learned trial magistrate erred in striking out the case or occasioned a miscarriage of justice to the Appellant for want of territorial jurisdiction, The Court in Matete v Co-operative Bank of Kenya Ltd [2026] KEHC 1661 (KLR) stipulated that: -
“Territorial jurisdiction is not substantive. It is administrative, and, therefore, procedural. It is meant for the convenience of the parties, to have disputes settled within the areas where the cause of action arise, to facilitate easier attendance in court by witnesses, among other factors. Territorial jurisdiction cannot trump or override substantive jurisdiction. A suit could be dismissed, for being filed in a court lacking substantive jurisdiction, but not where territorial jurisdiction lacks. A court lacking territorial jurisdiction, ought not strike out a suit, but it should, instead, invite the parties to apply for transfer of the matter to the court with jurisdiction.
10. Substantive jurisdiction goes to substance, and lack of it cannot be overridden by Article 159 of the Constitution. Territorial jurisdiction is administrative and procedural, it is provided in the Civil Procedure Act, which governs procedure, and not by the Magistrate’s Court Act, Cap 10, Laws of Kenya, which provides for substantive jurisdiction. Territorial jurisdiction can be overrun by Article 159 of the Constitution, as a technicality of procedure.
11. The trial court should have considered these issues, before it decided to strike out the suit.
12. Which court had territorial jurisdiction, for the purposes of the suit that was before the trial court? The appellant argues that a court in Nairobi would have had jurisdiction, for the hire purchase contract was entered into in Nairobi. The position by the respondent was that the instructions to seize the vehicle came from Mbale, Vihiga, hence the suit should have been filed in court at Vihiga.”
17. The court in HFC Limited v Kendi & another [2026] KEHC 5751 (KLR) stipulated: -
“29. Thus, a Defendant aggrieved by the filing of the suit in Nairobi instead of Eldoret, has the option of filing an application to the High Court. It is the High Court that has the authority and mandate to make a determination of which of the two Court having jurisdiction should hear the case. That is either Nairobi or Eldoret.
30. The power of the High Court to transfer cases is set out in Section 18 of the Civil Procedure Act. Since no application for transfer was made to the High Court, the Court was not called upon to make a determination of the correct forum in the case before the parties.”
18.From the cited case law, it is evident that territorial jurisdiction being administrative in nature facilitates management of filing of cases within the local limits of trial courts thereby a suit should not be struck out for want of territorial jurisdiction of a trial court. It is equally trite that a magistrate’s court has no jurisdiction to transfer a case to a court of concurrent jurisdiction save for the High Court or Courts of equal status as established under article 162 of the constitution of Kenya 2010. It is upon the party to the suit challenging territorial jurisdiction of a trial court to move the High Court or Courts of equal status to transfer the matter to the court with local territorial jurisdiction for hearing and disposal pursuant to section 18 of Civil Procedure Act,2010.
19. It is respectfully appreciated by this court that a court that lacks jurisdiction to deal with a matter downs its tools as stated in the celebrated case of owners of motor vessel (lilians) S vs Caltex oil company ltd (Kenya) (1989) 1klr and restated in the case of Albert Chaurembo Mumba & 7 others vs Maurice Munyao and 148 others (2019) eklr . However it is equally noted with respect that the cases of Matete vs Cooperative Bank of Kenya(2026)eklr , Anne Gathoni Gatheru vs Kenya Houses Investment &2 others (2026)eklr and HFC Limited v Kendi & another [2026] KEHC 5751 (KLR ) reemphasized that territorial jurisdiction being administrative in nature ,a court lacking territorial jurisdiction to entertain a suit ought not strike out the matter but invite the parties to move the High Court or Courts of equal status for transfer of the case to a court with territorial jurisdiction for hearing and disposal in line with section 18 of Civil Procedure Act,2010.
20.The Trial court’s record confirm the issue of want of territorial jurisdiction of the court to entertain the matter and suit being time barred pursuant to Public Authorities limitations Act (cap 39 laws of Kenya) was brought to the attention of the learned Trial Magistrate by the Plaintiff’s Advocate on 4.2.2025 who was categorical that a preliminary objection on record be dispensed with and matter proceeds for hearing hence deferred and matter fixed for hearing on the 15.5.2025 where the Appellants(plaintiff) testified and closed their case though Defendant/Respondent neither attended court nor tendered any evidence despite being served with a hearing notice. The matter was fixed for judgement on 3.7.2025 when the learned Trial magistrate struck out the suit for want of territorial jurisdiction.
21.Having considered the cited cases and statutory provisions above it would have been prudent ,just ,fair and cost effective for the learned Trial Magistrate to down her tools on the 4.2.2025 or 15.5.2025 to allow the parties to address the court on the issue of territorial jurisdiction and render her verdict or invite the parties to move Nairobi (Milimani) Environment and land Court of the status of High Court for transfer of the matter to a competent court of territorial jurisdiction for hearing and final disposal in line with section 18 of the Civil Procedure Act 2010.
22.Furthermore Article 159 of the constitution of Kenya 2010 upholds procedural fairness, not procedural technicalities. Territorial jurisdiction being administrative in nature does not override the provisions of article 159 of the constitution of Kenya 2010 that upholds substantive justice, not procedural technicalities, as respectfully stated in the case of Matete v Co-operative Bank of Kenya Ltd [2026] KEHC 1661 KLR (above).
23. In the case of Betty Nyamusi Machora vs Betty Nyanduko Makori (2018)eklr Majanja J (may his soul rest in peace) allowed an appeal on a matter that was filed in a magistrate's court and struck out for want of territorial jurisdiction on grounds that Magistrates Court Act 2015 provides for subject matter /value jurisdiction of magistrates but does not limit territorial jurisdiction of magistrates in handling matters countrywide.
24.Taking into consideration the cited decided cases, constitutional provisions of article 159 and article 48 of constitution of Kenya 2010 that upholds access to justice to all, overriding objective principles of just ,expeditious ,proportionate and affordable resolution of cases pursuant to section 1A of the civil procedure Act,2010, the matter in question having substantially proceeded for hearing and pending judgement , striking out the suit at the judgement stage amounts to subjecting the Appellants( plaintiffs) to incur further costs in filing a fresh suit within the local court seized with territorial jurisdiction to entertain the matter in the event the Appellant’s claim has not been caught up with limitation of Actions Act (cap 22 laws of Kenya ) or moving the court for leave to file the suit out of time if already caught up with limitation of Actions Act(cap 2022 laws of Kenya ).
25.In conclusion I find the learned Trial Magistrate erred in law in striking out the suit for want of territorial jurisdiction. The appeal is meritorious and allow it by setting aside the judgement dated 3.7.2025, substituting it with the order that the suit is reinstated for hearing and disposal on merit before a court clothed with local territorial jurisdiction. It is further ordered that the suit is transferred to Siaya Chief Magistrates Court for hearing and disposal on merit.
26.As to who bears costs of appeal, it is trite that costs follow events though the court has discretion in awarding costs based on circumstances of the case as restated in the case of Rai & 3 others Vs Rai & 4 others [2014] KESC 31 (KLR) . In this case each party had a chance to move the court in the earliest time possible for transfer of the matter to the local court of territorial jurisdiction to entertain the matter but in vain. the circumstances I order that each party will bear own costs of the Appeal.
27. In view of the findings above t he Appeal is meritorious and allowed as follows -
1. The Judgment of the Court dated 3.7.2025 striking out the suit is set aside and substituted with an order reinstating the suit for hearing and disposal on merit by a court where the suit property is situated.
2. The suit is transferred to Siaya Chief Magistrates Court for hearing and disposal on merit.
2. Costs of Appeal be borne by each party to the appeal.
3. Mention on the 24.11.2026 before the Chief Magistrates’ Court at Siaya for directions and further orders.
DATED, SIGNED AND DELIVERED THIS 18 TH DAY OF SEPTEMBER 2026 AT VOI IN THE PRESENCE OF:
MR OMBETE FOR THE APPELLANT
MR LETISIAH COURT ASSISTANT
BUT ABSENCE OF THE RESPONDENT
BY HON J .A. ORWA(JUDGE).
18.9.2026.
2.The Respondent entered appearance, filed statement of defence and raised a preliminary objection dated 8.11.2024 averring want of territorial jurisdiction of the trial court to handle the matter on grounds that the cause of action arose at Siaya County where the suit property is situated and claim being time barred under Public Authorities’ limitations Act (cap 39 laws of kanya.
3.The Appellant testified and closed her case on the 15.5.2025 after the trial court deferred disposal of the preliminary objection set for hearing on 4.2.2025. The Defendant offered no defence at close f proceedings on 15.5. 2025.The learned Trial Magistrate struck out the suit on 3.7.2025 for want of territorial jurisdiction. The Appellant being aggrieved by the decision of the Learned Trial Magistrate filed the appeal vide a Memorandum of Appeal dated 31.7. 2025 citing four grounds of appeal on the face of memorandum of appeal .
4.The Appeal was admitted for hearing and court directed that it be canvassed by way of written submissions. The Appellants filed their submissions dated 14.08.2026 whereas the Respondent filed its submissions dated 28.4.2026 on 28.08.2026.
5. The Appellant submitted that A claim for Kshs.1,794,380.00 arose from accrued rent arrears on account of premises situate in Siaya town /county leased by the Ministry of Education, Directorate of Adult & Continuing Education hence properly instituted against the Attorney-General as the statutory representative of the Government. The Appellant relied on section 12 of the Civil Procedure Act 2010, contending that the suit could be instituted where the Attorney-General carries on business, provided the relief could be obtained through personal obedience. The Appellant submitted that the trial court erred in striking out the suit solely for want of territorial jurisdiction without considering the merits of the case and any defect in place of suing was procedural that could, where appropriate, be addressed through transfer under section 18 of the Civil Procedure Act, rather than striking out the suit placing reliance on the case of Paulo Anyanzwa Kutekha v Steel Structures Limited(2018) kehc where sections 11–15 of the Act were considered regulating place of suing, with transfer or costs available as appropriate remedies.
6.The Respondent contended that section 12 of the Civil Procedure Act,2010 requires suits concerning immovable property to be instituted where the property is situated, namely Siaya law courts in this case. It argued that the proviso to section 12 is inapplicable as the relief sought cannot be entirely obtained through the Defendant’s personal obedience. The Respondent further submits that the Attorney-General’s role as Government’s legal representative does not confer territorial jurisdiction on the Nairobi court citing decided cases including the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd ( 1989) 1klr Waweru v Prime Auto Solutions 1971, Thuo v Rambiti Farm Sawmill Ltd (2025)keelc 8602 and Livingstone Maina Ombete v Kenya Power & Lighting Co. Ltd(2017) keca 624klr , where the Respondent maintained that territorial jurisdiction is statutory and, once absent, the Court must down its tools.
7.Having considered the entire record of Appeal, Memorandum and grounds raised in the appeal so to the noble rival submissions, the following issue arose for determination: -
a) Whether the trial court erred in finding that it lacked territorial jurisdiction to entertain the suit .
b) whether the trial court erred in striking out the suit instead of transferring it to Siaya law court for hearing and determination
c) Whether administrative presence of Attorney general offices country wide clothed the court with territorial jurisdiction to entertain the suit at Nairobi.
d) who to pay costs of the appeal?
8.This Court having been called upon to sit as the first Appellate court never had the chance to hear the evidence of the witness or see her impression or demeanor at the time of trial is mandated to interfere with the findings of the trial court unless the trial court misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice as stated in the case restated in the case of Selle and Another vs Associated Motor Boat Company ltd & others ,(1968)123 citing with approval the case of Shah vs Mbogo (1968)EA93.
9.As to whether the trial court erred in finding that it lacked territorial jurisdiction to entertain the suit Section 12 of the Civil Procedures Act 2010 provides for institution of suits where the subject matter is situated as follows:
“Subject to the pecuniary or other limitations prescribed by any law, suits as follows:
1. for the recovery of immovable property, with or without rent or profits;
2. for the partition of immovable property;
3. for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
4. for the determination of any other right to or interest in immovable property;
5. for compensation for wrong to immovable property;
6. for the recovery of movable property actually under distraint or attachment, where the property is situated in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, o subject to r in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain ”.
10.Section 15 of the civil procedure Act 2010 provides for other suits to be instituted where the defendant resides, or cause of action arises as follows :
a) Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction— (a)the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
b) Any of the Defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
c) The cause of action, wholly or in part, arises.
11.Section 9 of the Magistrates' courts Act 2015 provides for jurisdiction of a magistrate to handle Claims in employment, labour relations claims, land and environment cases so to Section 26 of Environment and land Court Act that mandates gazetted magistrates subject to their pecuniary jurisdiction to handle:
(i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(ii) compulsory acquisition of land;
(iii) land administration and management;
(iv) public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(v) environment and land generally;”
12.From the cited statutory provisions, it is trite that a suit can be filed where the cause of action arose, suit property is situated, Defendant resides or carries on business wholly or partially. The instant suit concerns a claim for rent, repair and redecoration costs in respect of immovable property known as L.R. No. 12045/95, situate in Siaya Town of Siaya County then occupied by the ministry of education directorate of adult and continuing education. The Plaintiffs /Appellants instituted the suit in Nairobi Magistrates court (Milimani Environment and land Court) averring the cause of action arose in Nairobi at paragraph 8 of the plaint.
13.The Defendant(Respondent) was sued in its capacity as the Representative of the State in relation to occupation of the rental premise by Directorate of Adult and continuing county education, Siaya County ,belonging to Plaintiffs/Appellants on account of contractual relationship between the Plaintiffs/Appellants and Ministry of Education -Directorate of Adult &continuing Education ,Siaya County from 2012 till the 15.8.2021 when the Tenant ( Directorate of Adult education-Siaya County )vacated the suit property.
14. Sections 12 &15 of Civil Procedure Act 2010 explicitly provide that suit must be instituted where the subject matter is situated, cause of action arose, Defendants reside or carries on business wholly or partially. The Appellant averred the Respondent has established its offices country wide hence the trial court was clothed with territorial jurisdiction to entertain the matter as filed in Nairobi or transfer it to Siaya law courts for hearing and disposal on merit rather than strike it out. No doubt the Respondent’s offices are spread countrywide though it does not confer exclusive jurisdiction to magistrates’ courts countrywide to hear and determine every matter filed before them by parties against the Respondent in disregard to the statutory provisions of the law that a cause of action be filed within the local limits where the subject matter is situated and/or cause of action arose or where the Defendant operates its business wholly or partially.
15. As pleaded by the Appellant vide the plaint dated 15.8.2024 the cause of action is substantially rooted to Siaya town of Siaya County, where the subject property is situated within the local limits of Siaya law courts and occupied by the Directorate of Adult & continuing Education office-, the government entity that was party to the relevant contractual arrangement carried on its business .This Court therefore finds that the mere presence of an office of the Attorney-General in Nairobi perse did not confer exclusive territorial jurisdiction upon the Nairobi Magistrates’ Court (milimani environment and land court) to hear and determine the instant dispute/case .The learned trial magistrate was right to find and hold that it had no territorial jurisdiction to entertain the matter.
16.As to whether the learned trial magistrate erred in striking out the case or occasioned a miscarriage of justice to the Appellant for want of territorial jurisdiction, The Court in Matete v Co-operative Bank of Kenya Ltd [2026] KEHC 1661 (KLR) stipulated that: -
“Territorial jurisdiction is not substantive. It is administrative, and, therefore, procedural. It is meant for the convenience of the parties, to have disputes settled within the areas where the cause of action arise, to facilitate easier attendance in court by witnesses, among other factors. Territorial jurisdiction cannot trump or override substantive jurisdiction. A suit could be dismissed, for being filed in a court lacking substantive jurisdiction, but not where territorial jurisdiction lacks. A court lacking territorial jurisdiction, ought not strike out a suit, but it should, instead, invite the parties to apply for transfer of the matter to the court with jurisdiction.
10. Substantive jurisdiction goes to substance, and lack of it cannot be overridden by Article 159 of the Constitution. Territorial jurisdiction is administrative and procedural, it is provided in the Civil Procedure Act, which governs procedure, and not by the Magistrate’s Court Act, Cap 10, Laws of Kenya, which provides for substantive jurisdiction. Territorial jurisdiction can be overrun by Article 159 of the Constitution, as a technicality of procedure.
11. The trial court should have considered these issues, before it decided to strike out the suit.
12. Which court had territorial jurisdiction, for the purposes of the suit that was before the trial court? The appellant argues that a court in Nairobi would have had jurisdiction, for the hire purchase contract was entered into in Nairobi. The position by the respondent was that the instructions to seize the vehicle came from Mbale, Vihiga, hence the suit should have been filed in court at Vihiga.”
17. The court in HFC Limited v Kendi & another [2026] KEHC 5751 (KLR) stipulated: -
“29. Thus, a Defendant aggrieved by the filing of the suit in Nairobi instead of Eldoret, has the option of filing an application to the High Court. It is the High Court that has the authority and mandate to make a determination of which of the two Court having jurisdiction should hear the case. That is either Nairobi or Eldoret.
30. The power of the High Court to transfer cases is set out in Section 18 of the Civil Procedure Act. Since no application for transfer was made to the High Court, the Court was not called upon to make a determination of the correct forum in the case before the parties.”
18.From the cited case law, it is evident that territorial jurisdiction being administrative in nature facilitates management of filing of cases within the local limits of trial courts thereby a suit should not be struck out for want of territorial jurisdiction of a trial court. It is equally trite that a magistrate’s court has no jurisdiction to transfer a case to a court of concurrent jurisdiction save for the High Court or Courts of equal status as established under article 162 of the constitution of Kenya 2010. It is upon the party to the suit challenging territorial jurisdiction of a trial court to move the High Court or Courts of equal status to transfer the matter to the court with local territorial jurisdiction for hearing and disposal pursuant to section 18 of Civil Procedure Act,2010.
19. It is respectfully appreciated by this court that a court that lacks jurisdiction to deal with a matter downs its tools as stated in the celebrated case of owners of motor vessel (lilians) S vs Caltex oil company ltd (Kenya) (1989) 1klr and restated in the case of Albert Chaurembo Mumba & 7 others vs Maurice Munyao and 148 others (2019) eklr . However it is equally noted with respect that the cases of Matete vs Cooperative Bank of Kenya(2026)eklr , Anne Gathoni Gatheru vs Kenya Houses Investment &2 others (2026)eklr and HFC Limited v Kendi & another [2026] KEHC 5751 (KLR ) reemphasized that territorial jurisdiction being administrative in nature ,a court lacking territorial jurisdiction to entertain a suit ought not strike out the matter but invite the parties to move the High Court or Courts of equal status for transfer of the case to a court with territorial jurisdiction for hearing and disposal in line with section 18 of Civil Procedure Act,2010.
20.The Trial court’s record confirm the issue of want of territorial jurisdiction of the court to entertain the matter and suit being time barred pursuant to Public Authorities limitations Act (cap 39 laws of Kenya) was brought to the attention of the learned Trial Magistrate by the Plaintiff’s Advocate on 4.2.2025 who was categorical that a preliminary objection on record be dispensed with and matter proceeds for hearing hence deferred and matter fixed for hearing on the 15.5.2025 where the Appellants(plaintiff) testified and closed their case though Defendant/Respondent neither attended court nor tendered any evidence despite being served with a hearing notice. The matter was fixed for judgement on 3.7.2025 when the learned Trial magistrate struck out the suit for want of territorial jurisdiction.
21.Having considered the cited cases and statutory provisions above it would have been prudent ,just ,fair and cost effective for the learned Trial Magistrate to down her tools on the 4.2.2025 or 15.5.2025 to allow the parties to address the court on the issue of territorial jurisdiction and render her verdict or invite the parties to move Nairobi (Milimani) Environment and land Court of the status of High Court for transfer of the matter to a competent court of territorial jurisdiction for hearing and final disposal in line with section 18 of the Civil Procedure Act 2010.
22.Furthermore Article 159 of the constitution of Kenya 2010 upholds procedural fairness, not procedural technicalities. Territorial jurisdiction being administrative in nature does not override the provisions of article 159 of the constitution of Kenya 2010 that upholds substantive justice, not procedural technicalities, as respectfully stated in the case of Matete v Co-operative Bank of Kenya Ltd [2026] KEHC 1661 KLR (above).
23. In the case of Betty Nyamusi Machora vs Betty Nyanduko Makori (2018)eklr Majanja J (may his soul rest in peace) allowed an appeal on a matter that was filed in a magistrate's court and struck out for want of territorial jurisdiction on grounds that Magistrates Court Act 2015 provides for subject matter /value jurisdiction of magistrates but does not limit territorial jurisdiction of magistrates in handling matters countrywide.
24.Taking into consideration the cited decided cases, constitutional provisions of article 159 and article 48 of constitution of Kenya 2010 that upholds access to justice to all, overriding objective principles of just ,expeditious ,proportionate and affordable resolution of cases pursuant to section 1A of the civil procedure Act,2010, the matter in question having substantially proceeded for hearing and pending judgement , striking out the suit at the judgement stage amounts to subjecting the Appellants( plaintiffs) to incur further costs in filing a fresh suit within the local court seized with territorial jurisdiction to entertain the matter in the event the Appellant’s claim has not been caught up with limitation of Actions Act (cap 22 laws of Kenya ) or moving the court for leave to file the suit out of time if already caught up with limitation of Actions Act(cap 2022 laws of Kenya ).
25.In conclusion I find the learned Trial Magistrate erred in law in striking out the suit for want of territorial jurisdiction. The appeal is meritorious and allow it by setting aside the judgement dated 3.7.2025, substituting it with the order that the suit is reinstated for hearing and disposal on merit before a court clothed with local territorial jurisdiction. It is further ordered that the suit is transferred to Siaya Chief Magistrates Court for hearing and disposal on merit.
26.As to who bears costs of appeal, it is trite that costs follow events though the court has discretion in awarding costs based on circumstances of the case as restated in the case of Rai & 3 others Vs Rai & 4 others [2014] KESC 31 (KLR) . In this case each party had a chance to move the court in the earliest time possible for transfer of the matter to the local court of territorial jurisdiction to entertain the matter but in vain. the circumstances I order that each party will bear own costs of the Appeal.
27. In view of the findings above t he Appeal is meritorious and allowed as follows -
1. The Judgment of the Court dated 3.7.2025 striking out the suit is set aside and substituted with an order reinstating the suit for hearing and disposal on merit by a court where the suit property is situated.
2. The suit is transferred to Siaya Chief Magistrates Court for hearing and disposal on merit.
2. Costs of Appeal be borne by each party to the appeal.
3. Mention on the 24.11.2026 before the Chief Magistrates’ Court at Siaya for directions and further orders.
DATED, SIGNED AND DELIVERED THIS 18 TH DAY OF SEPTEMBER 2026 AT VOI IN THE PRESENCE OF:
MR OMBETE FOR THE APPELLANT
MR LETISIAH COURT ASSISTANT
BUT ABSENCE OF THE RESPONDENT
BY HON J .A. ORWA(JUDGE).
18.9.2026.