1. This ruling results from the Applicant’s application dated 28th October, 2024, expressed to be brought under Article 159 of the Constitution of Kenya, Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap 21 Laws of Kenya, Sections 3 and 12(3) of the Small Claims Courts Act and Order 42 Rule (6) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law and seeks the following orders:
1. [Spent].
2. [Spent].
3. THAT this Honourable Court be pleased to order the transfer of Milimani Small Claims Court SCCC No. E10681 of 2024; Amsec Security Services Limited v Machakos Ranching Company Limited from the Milimani Small Claims Court to the Milimani Magistrates Commercial Court.
4. THAT such further and other relief be granted to the Applicant as this Honourable Court deems fit and expedient in the circumstances.
5. THAT costs of this application be in the cause.
2. The grounds upon which the Motion is premised are set out on the face of the application and are in precis that the counterclaim that has been proffered by the Applicant in the matter before the Small Claims Court exceeds the pecuniary jurisdiction of the Small Claims Court.
3. The application is supported by the affidavits of Major General James Mulinge sworn on 28th October, 2024. The deponent to the said affidavit states on oath that the Applicant’s counterclaim in the matter before the Small Claims Court is for damages against the Respondent herein for the amount of Ksh.1,668,000/-, which is beyond the pecuniary jurisdiction of the Small Claims Court, hence the instant application.
4. The application is opposed and to that end the Respondent filed a replying affidavit sworn on 8th November, 2024 by Amos Maina Mbuthia. The Respondent takes the position that the Small Claims Court has the requisite jurisdiction to entertain and determine the suit filed before it as the Respondent’s Claim against the Applicant herein is for the sum of Ksh.960,000/-.
5. The Respondent states through the affidavit that the counterclaim for the amount of Ksh.1,668,000/- “is a strange figure based on frivolous attempts by the Applicant” to defraud the Respondent of monies owed to the Respondent. The Respondent further states that the claim by the Applicant was investigated by the police and found to be without merit.
6. In rejoinder, the Applicant filed a supplementary affidavit sworn by Mr. Mulinge on 14th November, 2024 in which the said deponent attacks the form and contents of the Respondent’s replying affidavit.
7. The application proceeded by way of oral submissions, which I have considered, together with the record in its entirety. I deduce the issue for determination to be whether the claim before the Small Claims Court should be transferred to the Chief Magistrate’s Court at Milimani.
8. What is not disputed is the fact that the Applicant herein, who is the Respondent before the Small Claims Court has counterclaimed against the Respondent herein for the amount of Ksh.1,668,000/-. There is also no dispute that the pecuniary limit of the Small Claims Court is Ksh.1,000,000/-, under Section 12(3) of the Small Claims Courts Act.
9. The Applicant now urges that the matter before the Small Claims Court be transferred to the Chief Magistrate’s Court at Milimani Commercial Courts as the Small Claims Court does not have jurisdiction in pecuniary terms to entertain and determine the counterclaim.
10. The position taken by the Respondent is that the application is a delaying tactic meant to frustrate the Respondent as the counterclaim is frivolous and fictitious as there is no evidence of indebtedness by the Respondent to the Applicant in the tune of the counterclaim.
11. This court is clothed with supervisory jurisdiction over courts and tribunals subordinate to it under Article 165(6) of the Constitution. The said provision permits this court to consider, inter alia, an application such as the present one for transfer of a suit or claim that is filed before one subordinate court to another.
12. The main ground upon which the application, as I have stated above, is resisted is that counterclaim is frivolous and fictitious and that the Applicant has not provided evidence of its claim against the Respondent.
13. Article 50(1) of the Constitution, which relates to the right to a fair hearing, provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Under Article 25(c) of the Constitution, the right to a fair trial is among the rights and fundamental freedoms shall not be limited.
14. No doubt, the Small Claims Court does not have the requisite jurisdiction to determine the Applicant’s counterclaim for Ksh.1,668,000/- against the Respondent and to deny the Applicant the order of transfer would amount to denying the said party an opportunity to present its case, which is a right under Article 50(1) and which is not subject to limitation under Article 25(1).
15. As to whether the counterclaim is frivolous or not or whether it has evidentiary basis or not are not matters for this court to determine.
16. Matters of frivolity of the same and whether there is evidence to sustain the counterclaim are not within the jurisdiction of this court at this stage. The same fall under the province of the trial court, which is the court before which the parties will present their respective positions. I need not say more.
17. Being of the foregoing persuasion, I reach the result that the Applicant’s motion dated 28th October, 2024 is well merited and I proceed to allow it in the following terms:
a. Milimani Small Claims Court SCCC No. E10681 of 2024; Amsec Security Services Limited v Machakos Ranching Company Limited is hereby transferred from the Milimani Small Claims Court to the Milimani Chief Magistrates Commercial Court.
b. The original file in Milimani Small Claims Court SCCC No. E10681 of 2024; Amsec Security Services Limited v Machakos Ranching Company Limited to be mentioned before the Chief Magistrate, Milimani Magistrates Commercial Court on 2nd April, 2025 for directions.
c. The Applicant to serve copies of this ruling upon the Court Administrators Milimani Small Claims Court and Milimani Magistrate’s Commercial Court for purposes of compliance.
d. Each party shall bear their own costs of the application.
e. This file is closed.
Delivered (virtually), Dated and Signed this 6th day of March, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPLICANT: Ms. Naututu for Ms. Masinde.
FOR THE REPONDENT: Ms. Abuga for Ms. Muchira.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.