1. Vide notice of motion dated 16th September 2025, the applicant Rose Nafula Okumu seeks to have MCC Succession Cause No E068 of 2023 transferred to this court. The applicant contends that the court below lacks jurisdiction to hear and determine the matter before it, as it is bereft of pecuniary jurisdiction, as the property, Title No. Mombasa/Mwembelegeza/459, which constitutes the estate, is valued at Kes 21,000,000/-, a sum that exceeds the pecuniary jurisdiction of the Chief Magistrate’s Court, which stands at Kes 20,000,000.
2. The application is opposed. The citee/respondent filed grounds of opposition dated 11th December 2025, in which counsel for Rashid Naaman contended that the citor had no nexus at all with the estate of Musa Mohammed Naaman (deceased). It was contended that the case in the court below, to wit, MCC Succession Misc Cause No E068 of 2023; Rose Nafula Okumu v Rashid Naaman, had already been heard and determined, and that the court below had rendered its final decision. For that reason, there was nothing further to transfer; this court could transfer a matter only if the initial cause was filed in a court clothed with jurisdiction, which isn’t the case here. Lastly, that Title No Mombasa/Mwembelegeza/454 does not belong to the estate of Musa Mohammed Musa (deceased).
3. The citee/respondent filed a replying affidavit sworn on 23rd February 2026 in which he denied being related to Musa Mohammed Naaman, the decedent. Further, the suit property does not belong to the estate of the deceased person herein. In support of this contention, he annexed a title document as annexure “RN3”, which shows that the property belongs to Mwanamkuu Mkama Kisara
4. The citor’s counsel contended that the court cannot transfer a suit where it had been filed in a court without jurisdiction.
5. The motion was canvassed by way of written submissions. Both parties filed written submissions, which I have considered. The applicant's submissions are dated 28th January 2026. Those of the respondent are dated 24th February 2026.
6. Prior to considering the merits of the application, I must note that both parties have not been candid with the court. Whereas the respondent claims at paragraph 3 of the replying affidavit that:
“3. That moreover I have been advised by counsel, which counsel I very believe to be true, that the same file is concluded and file closed, the honourable subordinate court did render itself, there is a judgment.”
The said assertion is a bald-faced misrepresentation of facts. The Hon Adika found at paragraph 4 of his ruling that:
“What he should be telling this court is if he is ready to take out the letters of administration, and if he does not satisfy the court, then the applicant should be allowed to take out the letters of administration. The reply falls short, and I do dismiss the notice of motion and proceed to allow the citation as prayed. The costs shall be in the cause.”
7. Clearly, what occurred in the court below is that the respondent’s application was dismissed, and the citation was, in fact, allowed. It is difficult to see how the counsel for the respondent could have been unaware of this when he made a specific categorical statement that the matter in the court below had been concluded, in the grounds of opposition and the replying affidavit that he must have prepared for his client.
8. On the part of the applicant, I deprecate the attempt at misleading the court by filing an incomplete valuation report. The valuation report prepared by Elite Africa Valuers Ltd does not include copies of the title and search. It would appear to me that the page giving one 'ship details was specifically left out. This, in my view, is a blatant attempt to mislead the court. A party seeking the aid of the court must approach the court with clean hands, make full and frank disclosure and provide all information with candour, even those that aren’t favourable, and leave it to the court to make an informed decision.
9. With the incomplete report before me, I am unable to determine if the property does indeed belong to the deceased and whether its value exceeds the pecuniary jurisdiction of the court below. In the circumstances, the application dated 16th September 2023 must fail.
10. Even if a full and frank disclosure of the valuation report had been made, that the property indeed belongs to the decedent, and its value exceeds the court's pecuniary jurisdiction, I do not agree that this court could transfer the suit to itself. This is because the valuation report would have conclusively shown that the suit was filed in a court lacking jurisdiction.
11. It is trite law that the court’s power under Section 18 of the Civil Procedure Act may only be exercised where the matter is pending before a court with jurisdiction. This is so because a suit filed in a court without jurisdiction is a nullity, as was succinctly put by Ojwang, J (as he then was) in Boniface Waweru Mbiyu v Mary Njeri & another [2005] KEHC 2392 (KLR)
“I will, in agreement with the decision in Kagenyi v Musiramo, state here that the High Court will decline to assume jurisdiction in relation to any matter which has been filed before a Court or tribunal lacking jurisdiction. Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court.”
12. The Court of Appeal in the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR stated that:
“In numerous decided cases, courts, including this Court, have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter, and to allow the court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the "O2" principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation."
13. A similar holding was made by Koome, J (as she then was) in the case of Ali Abdi Sheikh v Edward Nderitu Wainaina and 3 others, HCCC No. 556 of 2009.
14. The above holdings are clear enough. Transfer of suit raises jurisdictional questions that are not procedural technicalities, which this court is required by Article 159(2)(d) of the Constitution not to give “undue regard to”. Jurisdiction, as Nyarangi, JA, stated in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), is everything, and without it the court must down its tools.
15. I have said enough. The application dated 16th September 2026 has no merit. The same is dismissed with costs.
16. It is so ordered.
Dated and signed at Mombasa, this 16th day of March 2026. Delivered virtually through Microsoft TEAMS.
2. The application is opposed. The citee/respondent filed grounds of opposition dated 11th December 2025, in which counsel for Rashid Naaman contended that the citor had no nexus at all with the estate of Musa Mohammed Naaman (deceased). It was contended that the case in the court below, to wit, MCC Succession Misc Cause No E068 of 2023; Rose Nafula Okumu v Rashid Naaman, had already been heard and determined, and that the court below had rendered its final decision. For that reason, there was nothing further to transfer; this court could transfer a matter only if the initial cause was filed in a court clothed with jurisdiction, which isn’t the case here. Lastly, that Title No Mombasa/Mwembelegeza/454 does not belong to the estate of Musa Mohammed Musa (deceased).
3. The citee/respondent filed a replying affidavit sworn on 23rd February 2026 in which he denied being related to Musa Mohammed Naaman, the decedent. Further, the suit property does not belong to the estate of the deceased person herein. In support of this contention, he annexed a title document as annexure “RN3”, which shows that the property belongs to Mwanamkuu Mkama Kisara
4. The citor’s counsel contended that the court cannot transfer a suit where it had been filed in a court without jurisdiction.
5. The motion was canvassed by way of written submissions. Both parties filed written submissions, which I have considered. The applicant's submissions are dated 28th January 2026. Those of the respondent are dated 24th February 2026.
6. Prior to considering the merits of the application, I must note that both parties have not been candid with the court. Whereas the respondent claims at paragraph 3 of the replying affidavit that:
“3. That moreover I have been advised by counsel, which counsel I very believe to be true, that the same file is concluded and file closed, the honourable subordinate court did render itself, there is a judgment.”
The said assertion is a bald-faced misrepresentation of facts. The Hon Adika found at paragraph 4 of his ruling that:
“What he should be telling this court is if he is ready to take out the letters of administration, and if he does not satisfy the court, then the applicant should be allowed to take out the letters of administration. The reply falls short, and I do dismiss the notice of motion and proceed to allow the citation as prayed. The costs shall be in the cause.”
7. Clearly, what occurred in the court below is that the respondent’s application was dismissed, and the citation was, in fact, allowed. It is difficult to see how the counsel for the respondent could have been unaware of this when he made a specific categorical statement that the matter in the court below had been concluded, in the grounds of opposition and the replying affidavit that he must have prepared for his client.
8. On the part of the applicant, I deprecate the attempt at misleading the court by filing an incomplete valuation report. The valuation report prepared by Elite Africa Valuers Ltd does not include copies of the title and search. It would appear to me that the page giving one 'ship details was specifically left out. This, in my view, is a blatant attempt to mislead the court. A party seeking the aid of the court must approach the court with clean hands, make full and frank disclosure and provide all information with candour, even those that aren’t favourable, and leave it to the court to make an informed decision.
9. With the incomplete report before me, I am unable to determine if the property does indeed belong to the deceased and whether its value exceeds the pecuniary jurisdiction of the court below. In the circumstances, the application dated 16th September 2023 must fail.
10. Even if a full and frank disclosure of the valuation report had been made, that the property indeed belongs to the decedent, and its value exceeds the court's pecuniary jurisdiction, I do not agree that this court could transfer the suit to itself. This is because the valuation report would have conclusively shown that the suit was filed in a court lacking jurisdiction.
11. It is trite law that the court’s power under Section 18 of the Civil Procedure Act may only be exercised where the matter is pending before a court with jurisdiction. This is so because a suit filed in a court without jurisdiction is a nullity, as was succinctly put by Ojwang, J (as he then was) in Boniface Waweru Mbiyu v Mary Njeri & another [2005] KEHC 2392 (KLR)
“I will, in agreement with the decision in Kagenyi v Musiramo, state here that the High Court will decline to assume jurisdiction in relation to any matter which has been filed before a Court or tribunal lacking jurisdiction. Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court.”
12. The Court of Appeal in the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR stated that:
“In numerous decided cases, courts, including this Court, have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter, and to allow the court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the "O2" principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation."
13. A similar holding was made by Koome, J (as she then was) in the case of Ali Abdi Sheikh v Edward Nderitu Wainaina and 3 others, HCCC No. 556 of 2009.
14. The above holdings are clear enough. Transfer of suit raises jurisdictional questions that are not procedural technicalities, which this court is required by Article 159(2)(d) of the Constitution not to give “undue regard to”. Jurisdiction, as Nyarangi, JA, stated in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), is everything, and without it the court must down its tools.
15. I have said enough. The application dated 16th September 2026 has no merit. The same is dismissed with costs.
16. It is so ordered.
Dated and signed at Mombasa, this 16th day of March 2026. Delivered virtually through Microsoft TEAMS.