1. The applicant seeks the transfer of the matter in the Chief Magistrate Court, to wit, Mombasa MCCC No E062 of 2023, from the Mombasa Chief Magistrate’s Court to the Mombasa Small Claims Court for hearing and determination.
2. The grounds of the application are that the applicant filed the instant suit seeking compensation from the respondents for injuries sustained in a road traffic accident in the Vivoni area of Kwale County, within the Republic of Kenya. The applicant contends that the matter before the Chief Magistrate’s Court is part of a series of matters that proceeded before the Mombasa Small Claims Court, namely Mombasa SCCC No E035 of 2023 and Mombasa SCCC No E047 of 2023. In respect of the two matters, judgment was delivered on 10th July and 19th September 2023, respectively.
3. The application was opposed. Mr McMillan Edwin Jengo, learned counsel for the respondents, deposed on 18th September 2025, stating that the accident occurred in the Vivoni area of Kwale County. He further stated that the Small Claims Court in Mombasa had no territorial jurisdiction to hear the matter. Secondly, he averred that matters before the Small Claims Court must be heard and determined within 60 days, and thus the said Court could not have jurisdiction to hear and determine a matter that had been pending in Court for over 2 years. Further, he stated that no cogent reason had been given that would warrant allowing the application. It was his view that the Court’s discretion to transfer suits cannot be exercised without a reason.
4. Counsel therefore prayed that the application dated 25th June 2025 be dismissed with costs.
5. The applicant subsequently filed an amended Notice of Motion dated 8th October 2025 seeking to have the matters transferred to the Kwale Chief Magistrate’s Court, or any other Court, by the Court in exercise of its own discretion, or alternatively that this Court orders Hon Kalo to conclude the matter.
6. The amended application was also opposed. In his new replying affidavit, sworn on 13th October 2025, Mr Jengo deposed that this Court cannot transfer a case that was filed in a Court without jurisdiction. He therefore prayed that the same be dismissed.
7. The application, as amended, without leave, was canvassed by way of written submissions. The applicants' submissions are dated 8th December 2025. It was contended that the only reason the matters were filed in Mombasa was that there was no Small Claims Court in Kwale at the time. The decision to do so in Mombasa was driven by necessity. Counsel urged that the High Court could exercise its jurisdiction under Section 18 of the Civil Procedure Act and transfer the matter to the Kwale Small Claims Court, and that doing so would serve the greater interest of justice.
8. The submissions of the Respondent are dated 19th December 2025. Counsel for the Respondent contended that 2 applications were on record. He stated that just like with the applications, the submissions were confusing. Mr Jengo contended that the cause of action arose in Kwale and the respondents were residents of Kwale. The Kwale Court, and not the Mombasa Court, should have been the proper forum.
9. Mr Jengo submitted that this Court cannot transfer the matter as it was filed in a Court without jurisdiction. He therefore prayed that the application be dismissed with costs.
10. I have considered the application, or rather the two applications, before this Court. I agree with Mr Jengo that they are all confusing and that it isn’t at all clear what the applicant or applicants want or where the suits should be transferred if the application is allowed.
11. It is clear that the suits were filed in a Court without jurisdiction. The accidents occurred in the Vivoni area of Kwale. The respondents are residents of Kwale. In light of the foregoing, the matters ought to have been filed in Kwale.
12. It is trite law that the High Court may only exercise its jurisdiction to transfer matters under section 18 of the Civil Procedure Act where the Original suit was filed in a Court with jurisdiction. A suit filed in a Court without jurisdiction is a nullity. It is incapable of being transferred. That is the emphatic position of the law as determined by the Courts.
13. In the case of Charles Omwata Omwoyo v African Highlands & Produce Co Ltd [2002] KEHC 1190 (KLR), Ringera, J, as he then was, stated that:
“The plaintiff's advocate has made a passionate plea to this court that to dismiss the application would be tantamount to punishing the plaintiff for the mistake of his advocate. That may very well be so. However, I am of the opinion that if a court has no jurisdiction to do something, it cannot do so in what is said to be the interests of justice. The interests of justice are forever best served by upholding the law and not bending it to suit the individual circumstances of cases before the court.”
14. Similarly, in the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) , the Court of Appeal held that:
“20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent, and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity. We have said enough to demonstrate that this appeal has merit. We allow it with costs to the appellant.”
15. I must also add that this Court cannot, even if the above hurdle had been surmounted, transfer a case of personal injury in a road traffic accident to the Small Claims Court. A 3-judge bench of the High Court, in Gathaiya v Attorney General & 2 others & 176 Interested Parties [2026] KEHC 290 (KLR). Judges Ogola, Mabeya and R. Nyakundi, in a judgment delivered on 22nd January 2026, declared at paragraph 89(a) that:
“A declaration hereby issues that claims for personal injuries arising out of the road traffic accidents are excluded from section 12(1) of the Small Claims Court Act. Accordingly, the Small Claims Court has no jurisdiction to entertain such claims forthwith.”
16. The upshot of the foregoing is that the applications dated 25th June 2025 and 8th October 2025 seeking the transfer of the suits are both without merit. They are dismissed with costs to the Respondents.
17. It is so ordered.
Dated and signed in Nairobi, this 16th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. The grounds of the application are that the applicant filed the instant suit seeking compensation from the respondents for injuries sustained in a road traffic accident in the Vivoni area of Kwale County, within the Republic of Kenya. The applicant contends that the matter before the Chief Magistrate’s Court is part of a series of matters that proceeded before the Mombasa Small Claims Court, namely Mombasa SCCC No E035 of 2023 and Mombasa SCCC No E047 of 2023. In respect of the two matters, judgment was delivered on 10th July and 19th September 2023, respectively.
3. The application was opposed. Mr McMillan Edwin Jengo, learned counsel for the respondents, deposed on 18th September 2025, stating that the accident occurred in the Vivoni area of Kwale County. He further stated that the Small Claims Court in Mombasa had no territorial jurisdiction to hear the matter. Secondly, he averred that matters before the Small Claims Court must be heard and determined within 60 days, and thus the said Court could not have jurisdiction to hear and determine a matter that had been pending in Court for over 2 years. Further, he stated that no cogent reason had been given that would warrant allowing the application. It was his view that the Court’s discretion to transfer suits cannot be exercised without a reason.
4. Counsel therefore prayed that the application dated 25th June 2025 be dismissed with costs.
5. The applicant subsequently filed an amended Notice of Motion dated 8th October 2025 seeking to have the matters transferred to the Kwale Chief Magistrate’s Court, or any other Court, by the Court in exercise of its own discretion, or alternatively that this Court orders Hon Kalo to conclude the matter.
6. The amended application was also opposed. In his new replying affidavit, sworn on 13th October 2025, Mr Jengo deposed that this Court cannot transfer a case that was filed in a Court without jurisdiction. He therefore prayed that the same be dismissed.
7. The application, as amended, without leave, was canvassed by way of written submissions. The applicants' submissions are dated 8th December 2025. It was contended that the only reason the matters were filed in Mombasa was that there was no Small Claims Court in Kwale at the time. The decision to do so in Mombasa was driven by necessity. Counsel urged that the High Court could exercise its jurisdiction under Section 18 of the Civil Procedure Act and transfer the matter to the Kwale Small Claims Court, and that doing so would serve the greater interest of justice.
8. The submissions of the Respondent are dated 19th December 2025. Counsel for the Respondent contended that 2 applications were on record. He stated that just like with the applications, the submissions were confusing. Mr Jengo contended that the cause of action arose in Kwale and the respondents were residents of Kwale. The Kwale Court, and not the Mombasa Court, should have been the proper forum.
9. Mr Jengo submitted that this Court cannot transfer the matter as it was filed in a Court without jurisdiction. He therefore prayed that the application be dismissed with costs.
10. I have considered the application, or rather the two applications, before this Court. I agree with Mr Jengo that they are all confusing and that it isn’t at all clear what the applicant or applicants want or where the suits should be transferred if the application is allowed.
11. It is clear that the suits were filed in a Court without jurisdiction. The accidents occurred in the Vivoni area of Kwale. The respondents are residents of Kwale. In light of the foregoing, the matters ought to have been filed in Kwale.
12. It is trite law that the High Court may only exercise its jurisdiction to transfer matters under section 18 of the Civil Procedure Act where the Original suit was filed in a Court with jurisdiction. A suit filed in a Court without jurisdiction is a nullity. It is incapable of being transferred. That is the emphatic position of the law as determined by the Courts.
13. In the case of Charles Omwata Omwoyo v African Highlands & Produce Co Ltd [2002] KEHC 1190 (KLR), Ringera, J, as he then was, stated that:
“The plaintiff's advocate has made a passionate plea to this court that to dismiss the application would be tantamount to punishing the plaintiff for the mistake of his advocate. That may very well be so. However, I am of the opinion that if a court has no jurisdiction to do something, it cannot do so in what is said to be the interests of justice. The interests of justice are forever best served by upholding the law and not bending it to suit the individual circumstances of cases before the court.”
14. Similarly, in the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) , the Court of Appeal held that:
“20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent, and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity. We have said enough to demonstrate that this appeal has merit. We allow it with costs to the appellant.”
15. I must also add that this Court cannot, even if the above hurdle had been surmounted, transfer a case of personal injury in a road traffic accident to the Small Claims Court. A 3-judge bench of the High Court, in Gathaiya v Attorney General & 2 others & 176 Interested Parties [2026] KEHC 290 (KLR). Judges Ogola, Mabeya and R. Nyakundi, in a judgment delivered on 22nd January 2026, declared at paragraph 89(a) that:
“A declaration hereby issues that claims for personal injuries arising out of the road traffic accidents are excluded from section 12(1) of the Small Claims Court Act. Accordingly, the Small Claims Court has no jurisdiction to entertain such claims forthwith.”
16. The upshot of the foregoing is that the applications dated 25th June 2025 and 8th October 2025 seeking the transfer of the suits are both without merit. They are dismissed with costs to the Respondents.
17. It is so ordered.
Dated and signed in Nairobi, this 16th day of April 2026. Delivered virtually through Microsoft TEAMS.