1. Before this court is the Notice of Motion dated 5 th June 2026 brought under Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and all other enabling provisions of the law.
2. The applicant seeks, inter alia, orders to stay proceedings in Milimani Small Claims Court Case E1587, pending determination of this application and transfer to the personal injury and material damage division in the Milimani Commercial Magistrates Court for hearing and determination.
3. The application is supported by the annexed affidavit on John Kihara Chege on the following grounds;
a) THAT the honourable Adjudicator S.N.Njoki in Milimani SCCC E1587 of 2026 indicated that she lacks jurisdiction to handle material damage claims when the suit first came before her for first mention;
b) THAT the honourable Adjudicator is slated to deliver a ruling on jurisdiction in Milimani SCCC E1587 of 2026 on 18 th June 2026 and that unless the proceedings are stayed the result will be dismissal of the claim thereby prejudicing the applicant since it is time barred and cannot be refiled in another court.
c) THAT the personal injury and material division in the Milimani Commercial Magistrate’s Court has jurisdiction to handle Milimani SCCC E1587 of 2026 and it is therefore in the interests of justice that the same be transferred to that court
d) THAT the applicant raises a valid cause of action in tort for material damage arising under the doctrine of subrogation, which ought to be preserved by transfer rather than dismissal. The transfer of the suit to the personal injury and material damage division in Milimani Commercial Magistrate’s Court, will preserve the cause of action and serve the ends of justice without prejudice to the Respondents.
4. This application came under certificate of urgency where this court ordered the same to be heard on priority and directed the application to be served on the respondents to enable responses and an inter parte hearing before the slated ruling of the Honourable Adjudicator.
5. On the slated day for the interpate hearing, the respondent had not filed any responses nor did they appear. An affidavit of Service dated 15 th June 2026 was placed before court which confirmed service had been effected. The court nevertheless proceeded to hear the applicant who reiterated the contents of the notice of motion dated 5 th June 2026 and supporting affidavit thereto.
6. Having considered the Motion and the supporting affidavit, the issue arising for determination at this stage is whether this court should intervene the matter at the Small Claims Court before it renders itself on the issue of jurisdiction.
7. The jurisdictional question is currently pending determination before the Honourable Adjudicator. From the material in front of this court, it is clear that a ruling is yet to be rendered. What then is before this court is not a determination by the Adjudicator, but an apprehension of the possible outcome of the pending ruling.
8. It is trite law that jurisdiction is everything and a court must first determine whether it possess jurisdiction before taking any further step in a matter.
9. . The Court of Appeal in Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, stated that:
“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. A Court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”
10. This therefore means that when such a question of jurisdiction has been raised then the court must first be afforded an opportunity to consider and pronounce itself on the same.
11. This court appreciates the concerns raised by the applicant in the event that the Small Claims Court declines jurisdiction. However, until the Honourable Adjudicator renders a decision, then there is no foundational anchor on which this court can exercise its supervisory or appellate jurisdiction. I am guided by the case of Speaker of the National Assembly v. Karume (1992) KECA KLR 42 where the courts observed that: -
“Where there is a clear procedure for redress of any particular grievance… then that should be strictly followed.”
12. It is therefore prudent and proper cause to allow the Small Claims Court pronounce itself on the jurisdictional question. Should the applicant be aggrieved by the outcome thereof, the law puts in place the appropriate avenues through which redress may be sought before this court.
13. Accordingly, I find the application herein to be premature.
14. The notice of motion dated 5 th of June 2026 is hereby declined.
15. There shall be no order as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16 TH DAY OF JUNE 2026
A.M. OKUTOYI
JUDGE
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2. The applicant seeks, inter alia, orders to stay proceedings in Milimani Small Claims Court Case E1587, pending determination of this application and transfer to the personal injury and material damage division in the Milimani Commercial Magistrates Court for hearing and determination.
3. The application is supported by the annexed affidavit on John Kihara Chege on the following grounds;
a) THAT the honourable Adjudicator S.N.Njoki in Milimani SCCC E1587 of 2026 indicated that she lacks jurisdiction to handle material damage claims when the suit first came before her for first mention;
b) THAT the honourable Adjudicator is slated to deliver a ruling on jurisdiction in Milimani SCCC E1587 of 2026 on 18 th June 2026 and that unless the proceedings are stayed the result will be dismissal of the claim thereby prejudicing the applicant since it is time barred and cannot be refiled in another court.
c) THAT the personal injury and material division in the Milimani Commercial Magistrate’s Court has jurisdiction to handle Milimani SCCC E1587 of 2026 and it is therefore in the interests of justice that the same be transferred to that court
d) THAT the applicant raises a valid cause of action in tort for material damage arising under the doctrine of subrogation, which ought to be preserved by transfer rather than dismissal. The transfer of the suit to the personal injury and material damage division in Milimani Commercial Magistrate’s Court, will preserve the cause of action and serve the ends of justice without prejudice to the Respondents.
4. This application came under certificate of urgency where this court ordered the same to be heard on priority and directed the application to be served on the respondents to enable responses and an inter parte hearing before the slated ruling of the Honourable Adjudicator.
5. On the slated day for the interpate hearing, the respondent had not filed any responses nor did they appear. An affidavit of Service dated 15 th June 2026 was placed before court which confirmed service had been effected. The court nevertheless proceeded to hear the applicant who reiterated the contents of the notice of motion dated 5 th June 2026 and supporting affidavit thereto.
6. Having considered the Motion and the supporting affidavit, the issue arising for determination at this stage is whether this court should intervene the matter at the Small Claims Court before it renders itself on the issue of jurisdiction.
7. The jurisdictional question is currently pending determination before the Honourable Adjudicator. From the material in front of this court, it is clear that a ruling is yet to be rendered. What then is before this court is not a determination by the Adjudicator, but an apprehension of the possible outcome of the pending ruling.
8. It is trite law that jurisdiction is everything and a court must first determine whether it possess jurisdiction before taking any further step in a matter.
9. . The Court of Appeal in Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, stated that:
“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. A Court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”
10. This therefore means that when such a question of jurisdiction has been raised then the court must first be afforded an opportunity to consider and pronounce itself on the same.
11. This court appreciates the concerns raised by the applicant in the event that the Small Claims Court declines jurisdiction. However, until the Honourable Adjudicator renders a decision, then there is no foundational anchor on which this court can exercise its supervisory or appellate jurisdiction. I am guided by the case of Speaker of the National Assembly v. Karume (1992) KECA KLR 42 where the courts observed that: -
“Where there is a clear procedure for redress of any particular grievance… then that should be strictly followed.”
12. It is therefore prudent and proper cause to allow the Small Claims Court pronounce itself on the jurisdictional question. Should the applicant be aggrieved by the outcome thereof, the law puts in place the appropriate avenues through which redress may be sought before this court.
13. Accordingly, I find the application herein to be premature.
14. The notice of motion dated 5 th of June 2026 is hereby declined.
15. There shall be no order as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16 TH DAY OF JUNE 2026
A.M. OKUTOYI
JUDGE
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