1. Before the court for determination is the Applicant’s Notice of Motion application dated 13/9/2024, filed pursuant to Sections 1A, 1B, 3A, 3B, and 18 of the Civil Procedure Act, in which the Applicant seeks the following prayers:-
“i. Spent;
ii. THAT the Honorable Court be pleased to set aside the Order issued on 18th July 2024 by Hon Justice Visram transferring HCCCOM E304 of 2024 (Mwananchi Credit Limited v. Pauline Nguyai) to the Chief Magistrate Court-Milimani for hearing.
iii. THAT Original file in the Magistrates Court Civil Case No. MCCC/E4076/2024-Mwananchi Credit v Pauline Nguyai formerly HCCCOM E304 of 2024 (Mwananchi Credit Limited v. Pauline Nguyai) be returned to the High Court and reinstated as HCCCOM E304 of 2024 (Mwananchi Credit Limited v. Pauline Nguyai) for hearing and determination.
iv. THAT the Costs be provided for.”
2. The Applicant sought relief from the court based on grounds that it extended a loan of a loan of Ksh. 15,300,000/- to the Respondent on 2/12/2023 secured by a Land Rover Discovery (KDN 900C), with an agreed repayment of Ksh. 1,096,500 per month for 24 months.
3. However, the Respondent only made a single payment on 4/1/2024 and as of 12/9/2024, the outstanding loan balance had ballooned to Ksh. 29,818,069.62 due to accrued interest and penalties, approaching the vehicle’s estimated value of Ksh. 30,000,000.
4. The Applicant asserted that in order to recover the outstanding debt, it filed a suit (HCCCOM E304 of 2024) in the High Court seeking orders compelling the Respondent to clear arrears amounting to Ksh. 9,359,822 as of 5/6/2024, and to surrender the vehicle for tracker reinstallation and inspection. The Applicant also filed an urgent application, which was certified as such by Mugambi J and scheduled for mention before Visram J on 18/6/2024.
5. The Applicant stated that, despite a delay, the court later directed that the vehicle’s tracker be reinstated within five days, however, the Respondent failed to comply with this order.
6. Further, that 18/7/2024, the court erroneously transferred the case to the Magistrates’ Court (MCCC/E4076/2024), despite the lower court lacking jurisdiction over the matter, given the vehicle’s value, and the Respondent has since exploited this error to avoid compliance, obstructing the Applicant’s recovery efforts.
7. The Applicant now seeks the court’s intervention to set aside the transfer order, reinstate the case in the proper forum, and grant relief on an ex parte basis to prevent further financial harm due to the Respondent’s default and non-compliance.
8. In opposition to this application, the Respondent filed a Preliminary Objection dated 23/10/2024 and a replying affidavit sworn on 22/10/2024.
9. The basis on the Objection by the Respondent is that the suit herein is Res judicata as the same issues and subject matter were adjudicated and dismissed vide HCCOMM/E304/2024 Citation: Mwananchi Credit Limited VS Pauline W. Nguyai.
10. It was further the Respondent’s position that the instant application is analogous to an application for review which, under Section 80 of the Civil Procedure Act, can only be dealt with by the court which passed the decree/order. The Respondent asserted that this court lacks jurisdiction to review the orders issued as it was never privy to the proceedings hence incompetent to review orders issued.
11. In the circumstances, the Respondent submitted that the Application is an abuse of the court process, having been previously dismissed, and this filing amounts to re-litigation of the same matter without a proper basis in law.
12. The Respondent therefore prayed that this suit be struck out with costs
Analysis and determination:
13. This is an application seeking to set aside the order issued on 18/7/2024 by Visram J transferring HCCCOM E304 of 2024 (Mwananchi Credit Limited v. Pauline Nguyai) to the Chief Magistrate Court-Milimani for hearing.
14. The Applicant submitted that the present application is seeking the review of an order premised on an error on the face of the court record and seeking to transfer a matter from a court devoid of pecuniary jurisdiction to the appropriate court.
15. The error claimed is that the court failed to acknowledge that the Applicant, the plaintiff in HCCOMM E304 of 2024, sought the production of a Motor vehicle and the repayment of a debt both the car and the debt being worth more than the Kes. 20, 000, 000/- beyond the pecuniary limit of the Magistrates Court, which values were expressly provided to the Court in the Plaint.
16. Section 80 of the Civil Procedure Act states:
“ Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
17. Order 45, rule 1 of the Civil Procedure Rules states:-
“ Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
18. From the provisions above, it is clear that an application to review an order can only be filed to the court that passed the said order. In this case, the Applicant is seeking the review of an order issued on 18/7/2024 by Visram J, who transferred the suit to the Magistrates court.
19. It is trite law that a court of equal status cannot review another court’s decision. On this ground alone, I must down my tools for lack of jurisdiction. Jurisdiction is everything, and without it the court lacks the power to proceed. See the often-cited Court of Appeal case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] eKLR (Nyarangi, Masime & Kwach, JJA).
20. Accordingly, I find no merit in the application dated 13/9/2024 and hereby dismiss the same with costs.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF APRIL 2025
ADO MOSES
JUDGE