SAMMY KARIUKI NDERITU T/A OXYGEN BAR AND RESTAURANT VS BAKARI KILIKU MWANZUI AND BERNARD MULWA AND 7 Others

1. On 10^th November, 2023 the Applicants filed via certificate of urgency   a Notice of Motion dated 9^th November, 2023 seeking orders: -
2. THAT this Honourable court be pleased to issue Order for stay of proceedings in the Small Claim Court Nairobi pending for hearing and determination of this application.
3. THAT this Honourable Court be pleased to Order that the court file be transferred to Makindu Law Courts for hearing and determination of this suit.
4. That costs of this application be in the cause.
5. The application is brought under Section 18 of the CPA and Articles 159 and 165 (6) of the Constitution of Kenya, 2010.
6. The grounds for the application are that :.
7. THAT the pecuniary jurisdiction as exhibited in the statement of claim clearly exceeds the pecuniary jurisdiction of the small claims court.
8. THAT the Respondent, one, BAKARI KALUKI MWANZUI, has preferred a counter claim which ought to be tried outside the jurisdiction of the small claims court and also exceeds the jurisdiction of the small claims court and is directly related to the claim herein and in the interest of justice should be tried outside the small claims court.
9. THAT it is therefore imperative that the matter be transferred to a court of competent jurisdiction like the magistrate court Makindu for timely herein and disposal of the same.
10. THAT currently at Makindu Law Courts Magistrates have jurisdiction.
11. THAT the claim is within the pecuniary and geographical limits of Makindu Law Courts.
12. THAT the cause of action arose within the local limits of Makindu Law Courts. 
13. The application is supported by the affidavit of Samuel Kasyoka Advocate sworn on 9^th November, 2023 reiterating the grounds and adding that the Small Claims matter is Milimani No. E3346/2023 Sammy Muriuki Nderitu vs Bakari Kiliku & others. He depones that in the reply to the claim they have filed a counter claim whose nature and value removes the matter from the jurisdiction of the Small Claims Court - and that the Small Claims Court does not have jurisdiction to hear matters of malicious prosecution and false imprisonment - that there is a Small Claims Court in Makindu where the cause of action arose.

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1. In a further affidavit sworn on an unknown date but filed on 6^th December, 2023 counsel depones further that there was need to stay the proceedings at the Small Claims Court in Nairobi – otherwise the Applicant would be prejudiced.
2. The application was amended on 12^th February, 2024 to reflect the case Number and the prayers for transfer of the matter from Milimani to Makindu law courts. The reply to the claim and counter claim was annexed.
3. The application is opposed vide the replying affidavit of Sammy Kariuki Nderitu. I noted that the affidavit contained matters that appear to be in the form of submissions, citing authorities and the law without acknowledging the source of that information and knowledge. If the claimant’s counsel wanted to file submissions he ought to have done so separately.
4. The respondent depones that the counter claim is defective because it does not have the requisite parties relating to a claim for malicious prosecution. That there is no claim for malicious prosecution pending before the Small Claims Court to warrant the transfer of the case. That the matter for malicious prosecution is not for the Small Claims Court and ought to be filed in a separate suit. That in any event this application ought to have been filed in the High Court at Milimani Law Courts. That the Applicant herein raised the same issues raised here with the learned trial magistrate at the Small Claims Court and the court refused to decline jurisdiction. That instead of seeking review of the orders or appealing against the same the Applicant filed this application for transfer.
5. When the application came for hearing I granted time to counsel for the Applicant to file the ruling or orders of the subordinate court on the issue raised before it. However by  the time we look a date for ruling - the same had not been filed. Nevertheless, it was conceded on both sides that the Applicant raised the question of jurisdiction before the trial court and that court rejected the submissions of counsel and proceeded with the matter.
6. The issue for determination is whether on the grounds placed before me this court can transfer the matter from Nairobi Milimani to Makindu. I must keep in mind that the issue of jurisdiction has been raised so it must also turn as well on the question of jurisdiction.
7. Section 18 of the Civil Procedure Act states;

18. Power of High Court to withdraw and transfer case instituted in subordinate court

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

1. The applicable provision here is (18)1) (b) (ii).
2. The reasons given for the request for the transfer were jurisdiction and wrong place of suing.
3. The Jurisdiction of the Small Claims Court is set out at Part III of the Small Claims Court Act 2/2016.  Section provides for the nature of claims and its pecuniary jurisdiction. It states

(1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—

(a) a contract for sale and supply of goods or services;

(b) a contract relating to money held and received;

(c) liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;

(d) compensation for personal injuries; and

(e) set-off and counterclaim under any contract.

(2) Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law.

(3) The pecuniary jurisdiction of the Court shall be limited to one million shillings. ( emphasis added)

(4) Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit.

1. The matter before the court exceeds Ksh 1,000,000 but the applicant has expressly forfeited anything beyond Ksh 1M.
2. On the counter claim, it is true the applicant has introduced a counter claim of malicious prosecution and false imprisonment, claiming that the two matters are inter twined.  It is again on this basis that he submits that the Small Claims Court lacks jurisdiction.
3. Section 13 of the SCC Act provides for exclusion of jurisdiction Small Claims Court and at sub section

(5) A claim shall not be brought before the Court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations. ( emphasis added)

1. The Applicant’s counter claim states in part: -

“The Respondent thus states that the claimant claims in this matter are connected directly to the Respondent’s claim for malicious prosecution and ought to properly tried(sic) together and shall pray that this matter be transferred to a court with jurisdiction to try the whole matter instead of doing it piece meal”.

1. It is clearly evident that the Small Claims Court would not have jurisdiction to try the claim for malicious prosecution. The counterclaim on malicious prosecution as made in the claim before the SC Court is there for misconceived and cannot be considered to be a piece of the claim before the court.
2. The applicant’s position is that it is the 2^nd respondent in the SCC who has a claim for malicious prosecution. There are 9 respondents in the SCC matter. He has not demonstrated that there is any claim for malicious prosecution pending in Makindu Law Courts and its relationship with this matter to support the claim that the claim before the SCC is a piece of the claim in the malicious prosecution suit. In the circumstances. I am of the view that the learned trial court was right to deny the Applicants application on the issue of jurisdiction.
3. On the submission that the matter was filed in the wrong territorial jurisdiction as the applicant and the business are in Makindu, and for that reason the matter ought to have been filed in Makindu. The submission is based on the provisions of s. 15 of the CPA. However, Section 15 (1) of the SCC Act allows the claimant to file the claim where the claimant resides/carries on business if it is within the local limits of the jurisdiction of the court. It states

15. Parties to proceedings before the Court

(1) A person has the right to lodge a claim before the Court only if—

(a) such a person ordinarily resides or carries on business within the local limits of the jurisdiction of the Court;

(b) the subject matter of the claim is situated within the local limits of the jurisdiction of the Court;

(c) the contract to which the claim relates was either made or was intended to be performed within the local limits of the jurisdiction of the Court

(d) the cause of action arose within the local limits of the jurisdiction of the Court; or

(e) the defendant to the claim resides within the local limits of the jurisdiction of the Court.

(2) Without prejudice to subsection (1), any person against whom notice of a claim has been served under section 25 shall be party to the proceedings of that claim

1. My understanding of this provision is that any of those circumstances listed would give the claimant the locus standi to file the claim where he did, and in this case the Respondent position is that he is resident of Nairobi within the local limits of the Milimani Law Courts Small Claims Court hence as per s. 15(1) he was within his right to file the claim in the Small Claims Court at Milimani.
2. Accordingly, this matter proceeding before the Small Claims Court does not prejudice the Applicant’s co respondent as the has recourse in the other courts with respect to his claim for malicious prosecution the Respondent is not at fault in filing the matter in Nairobi.
3. With respect I find that the SCC court has both the territorial and pecuniary  jurisdiction to hear and determine the Milimani No. E3346/2023 Sammy Muriuki Nderitu vs Bakari Kiliku & others, hence the prayer for an order to transfer the same the court at Makindu is denied.
4. In the circumstances the application is dismissed with cost to the Respondent.