In the application dated 28.03.2023, the Applicant seeks to transfer this suit from the Magistrates Court to the High Court. I have heard counsel for the Applicant and read the response in opposition. The application is dismissed for the following reasons:
1. Counsel for the Applicant admits that value of the subject matter of the suit is about Kshs. 30 million which is beyond the jurisdiction of the Magistrates Court hence the case was filed in a court without jurisdiction.
2. Since the Magistrates Court lacks jurisdiction to entertain the suit, the court cannot transfer the suit since the suit itself if a nullity (Phoenix of East Africa Assurance Co. Ltd v S. M. Thiga v Newspaper Service [2019] eKLR).
3. The Applicant cannot call in aid Article 159 of the Constitution since the issue of jurisdiction is not a mere technicality but a substantive issue that cannot be cured by glossing over it.
4. The Applicant shall pay cost of the application.
DATED and DELIVERED at NAIROBI this 18th day of APRIL 2023
D. S. MAJANJA
JUDGE