' Introduction
1. By Originating Summons dated 20th November 2024, the Plaintiff, Straight Group Limited, seeks that Milimani CMCC No. E175 of 2023: Straight Group Limited v D. Light Limited be transferred from the Chief Magistrate’s Court to the High Court for hearing and determination.
2. The Originating Summons is expressed to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution. The Application is premised on the grounds that the claim before the Magistrate’s Court exceeded its pecuniary jurisdiction following an amendment to the Plaint increasing the special damages sought to Kshs. 25,852,756/=.
3. The Defendant, D. Light Limited, opposed the application through Grounds of Opposition dated 8th April 2025, contending that the application by way of Originating Summons is not anchored on any provision of law, constitutes an abuse of the court process, and that a suit filed in a court without jurisdiction cannot be transferred to a court with jurisdiction.
4. The background of the dispute is that the Plaintiff filed Milimani CMCC No. E175 of 2023 on 24th January 2023 claiming damages for breach of a distributorship agreement allegedly entered into with the Defendant.
5. The Plaintiff initially claimed Kshs. 18,614,644/= as special damages, within the jurisdictional limits of the Magistrate’s Court. However, on 14th October 2024, the Plaintiff filed an Amended Plaint revising the special damages to Kshs. 25,852,756/=, thereby exceeding the Kshs. 20,000,000/= limit under Section 7(1) of the Magistrates’ Courts Act, 2015.
6. The Defendant thereafter raised a Preliminary Objection dated 20th February 2025, arguing that the subordinate court lacked jurisdiction to entertain the amended claim. Before the objection could be determined, the Plaintiff filed the present Originating Summons seeking an order to transfer the suit to the High Court.
7. The Court directed that the application be canvassed by way of written submissions. Both parties duly filed their respective submissions, which I have carefully considered alongside the pleadings and the authorities cited.
Analysis and Determination
8. Having carefully considered the pleadings and submissions, the following issues arise for determination:-
i. Whether the instant application is competently before this Court; and
ii. Whether a suit filed in a court lacking jurisdiction can be transferred to a competent court;
(i) Whether the Application is competent
8. The Defendant submitted that the Plaintiff’s Originating Summons is misconceived as the Civil Procedure Rules, specifically Order 37, do not provide for the transfer of suits by way of Originating Summons. It was argued that the procedure is unknown to law and amounts to an abuse of process.
9. Conversely, the Plaintiff contended that this Court has wide powers under Section 18 of the Civil Procedure Act and inherent jurisdiction under Sections 1A, 1B, and 3A to make orders necessary for the ends of justice, including transfer of suits filed before subordinate courts lacking jurisdiction. The Plaintiff invoked Article 159(2)(d) of the Constitution, urging the Court to administer justice without undue regard to procedural technicalities.
10. Order 37 of the Civil Procedure Rules specifies instances where proceedings may be commenced by Originating Summons. These include matters relating to administration of estates, trusts, mortgages, land transactions, limitation of actions, and similar issues. Transfer of suits between courts is not among the circumstances contemplated.
11. While this Court appreciates the need to administer justice substantively, procedure remains the handmaiden of justice. The use of an Originating Summons to seek transfer of a case is irregular and unsupported by the procedural law. Instead, the Plaintiff ought to have moved the Court by way of a formal application under Section 18 of the Civil Procedure Act, as opposed to an Originating Summons, as is the case herein.
12. The above notwithstanding, the Court must still consider the substantive question of whether the suit in the subordinate court is capable of being transferred.
(ii) Whether a suit filed in a court lacking jurisdiction can be transferred
14. The power of the High Court to withdraw and transfer a case instituted in a subordinate court to this Court is provided for under Section 18(1) of the Civil Procedure Act, which provides that: -
“(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.
15. From the above provision of the law, it is clear that under Section 18(1) of the Civil Procedure Act, this Court may exercise its supervisory jurisdiction to withdraw or transfer suits for trial and final disposal by itself or other courts subordinate to it. This law also gives the court the general power to transfer suits, which power may be exercised at any stage of the proceedings. A court may do so either on application by a party or suo moto.
16. Where the transfer is at the instance of a party, it is well established by judicial precedent that the burden lies on the applicant to make out a strong case for the transfer. Some of the matters to be taken into consideration are the balance of convenience, questions of expense, interest of justice, and possibilities of undue hardship, and if the court is left in doubt as to whether, under all the circumstances, it is proper to order transfer, the application must be refused.
17. Additionally, the power under Section 18 of the Civil Procedure Act refers to competent suits filed in courts seized with the requisite jurisdiction to entertain them. The general power of the court to transfer suits under section 18 of the Civil Procedure Act cannot, therefore, be exercised in a matter where the suit was filed in a court without jurisdiction. In Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR, the Court of Appeal held 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 a 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 the Court lacks jurisdiction 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 same…”
18. In the present case, the Plaintiff’s principal argument is that the original suit was competently filed, as the initial claim of Kshs. 18,614,644/= was within the subordinate court’s jurisdiction, and it is only the amendment that pushed the claim beyond the statutory limit. It was further submitted that the excess value was occasioned by a forensic audit conducted after the initial filing, and thus the Plaintiff should not be penalized for an honest mistake.
19. The Defendant, on the other hand, cited Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [supra], where the Court of Appeal emphatically held that it is illegal for the High Court to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction, since such a suit is a nullity ab initio and there exists nothing to transfer.
17. The jurisprudence is clear and settled. Section 18 of the Civil Procedure Act does not empower the High Court to breathe life into a suit that is void for want of jurisdiction. The rationale is simple: jurisdiction is conferred by statute, not by the will of the parties or by curative judicial discretion. The Court in Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR expressed the same principle:
“Where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. A suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity is in the eyes of the law nothing, and therefore the court cannot purport to transfer nothing and mould it into something.”
20. The question that remains is whether the Magistrate’s Court had jurisdiction at the time the suit was instituted. The Plaintiff’s initial claim fell within the jurisdiction, but upon amendment increasing the special damages to Kshs. 25,852,756/=, the court was divested of jurisdiction. From that point onwards, the proceedings became a nullity.
21. The Plaintiff ought to have withdrawn the suit and filed a fresh one in the proper forum. To invite this Court to transfer such a suit would be to sanctify an illegality and to act contrary to binding precedent.
22. In the premises, I therefore find that Milimani CMCC No. E175 of 2023, having been rendered incompetent by the amendment that took the claim beyond the pecuniary jurisdiction of the Magistrate’s Court, cannot be transferred to this Court under Section 18 of the Civil Procedure Act.
23. In the result, and for the reasons set out above, this Court finds that the Originating Summons dated 20th November 2024 is incompetent and devoid of merit. The same is hereby dismissed with costs to the Defendant.
24. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH OCTOBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A……………...for the Applicant
Mwangi………..... for the Respondent
'
1. By Originating Summons dated 20th November 2024, the Plaintiff, Straight Group Limited, seeks that Milimani CMCC No. E175 of 2023: Straight Group Limited v D. Light Limited be transferred from the Chief Magistrate’s Court to the High Court for hearing and determination.
2. The Originating Summons is expressed to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution. The Application is premised on the grounds that the claim before the Magistrate’s Court exceeded its pecuniary jurisdiction following an amendment to the Plaint increasing the special damages sought to Kshs. 25,852,756/=.
3. The Defendant, D. Light Limited, opposed the application through Grounds of Opposition dated 8th April 2025, contending that the application by way of Originating Summons is not anchored on any provision of law, constitutes an abuse of the court process, and that a suit filed in a court without jurisdiction cannot be transferred to a court with jurisdiction.
4. The background of the dispute is that the Plaintiff filed Milimani CMCC No. E175 of 2023 on 24th January 2023 claiming damages for breach of a distributorship agreement allegedly entered into with the Defendant.
5. The Plaintiff initially claimed Kshs. 18,614,644/= as special damages, within the jurisdictional limits of the Magistrate’s Court. However, on 14th October 2024, the Plaintiff filed an Amended Plaint revising the special damages to Kshs. 25,852,756/=, thereby exceeding the Kshs. 20,000,000/= limit under Section 7(1) of the Magistrates’ Courts Act, 2015.
6. The Defendant thereafter raised a Preliminary Objection dated 20th February 2025, arguing that the subordinate court lacked jurisdiction to entertain the amended claim. Before the objection could be determined, the Plaintiff filed the present Originating Summons seeking an order to transfer the suit to the High Court.
7. The Court directed that the application be canvassed by way of written submissions. Both parties duly filed their respective submissions, which I have carefully considered alongside the pleadings and the authorities cited.
Analysis and Determination
8. Having carefully considered the pleadings and submissions, the following issues arise for determination:-
i. Whether the instant application is competently before this Court; and
ii. Whether a suit filed in a court lacking jurisdiction can be transferred to a competent court;
(i) Whether the Application is competent
8. The Defendant submitted that the Plaintiff’s Originating Summons is misconceived as the Civil Procedure Rules, specifically Order 37, do not provide for the transfer of suits by way of Originating Summons. It was argued that the procedure is unknown to law and amounts to an abuse of process.
9. Conversely, the Plaintiff contended that this Court has wide powers under Section 18 of the Civil Procedure Act and inherent jurisdiction under Sections 1A, 1B, and 3A to make orders necessary for the ends of justice, including transfer of suits filed before subordinate courts lacking jurisdiction. The Plaintiff invoked Article 159(2)(d) of the Constitution, urging the Court to administer justice without undue regard to procedural technicalities.
10. Order 37 of the Civil Procedure Rules specifies instances where proceedings may be commenced by Originating Summons. These include matters relating to administration of estates, trusts, mortgages, land transactions, limitation of actions, and similar issues. Transfer of suits between courts is not among the circumstances contemplated.
11. While this Court appreciates the need to administer justice substantively, procedure remains the handmaiden of justice. The use of an Originating Summons to seek transfer of a case is irregular and unsupported by the procedural law. Instead, the Plaintiff ought to have moved the Court by way of a formal application under Section 18 of the Civil Procedure Act, as opposed to an Originating Summons, as is the case herein.
12. The above notwithstanding, the Court must still consider the substantive question of whether the suit in the subordinate court is capable of being transferred.
(ii) Whether a suit filed in a court lacking jurisdiction can be transferred
14. The power of the High Court to withdraw and transfer a case instituted in a subordinate court to this Court is provided for under Section 18(1) of the Civil Procedure Act, which provides that: -
“(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.
15. From the above provision of the law, it is clear that under Section 18(1) of the Civil Procedure Act, this Court may exercise its supervisory jurisdiction to withdraw or transfer suits for trial and final disposal by itself or other courts subordinate to it. This law also gives the court the general power to transfer suits, which power may be exercised at any stage of the proceedings. A court may do so either on application by a party or suo moto.
16. Where the transfer is at the instance of a party, it is well established by judicial precedent that the burden lies on the applicant to make out a strong case for the transfer. Some of the matters to be taken into consideration are the balance of convenience, questions of expense, interest of justice, and possibilities of undue hardship, and if the court is left in doubt as to whether, under all the circumstances, it is proper to order transfer, the application must be refused.
17. Additionally, the power under Section 18 of the Civil Procedure Act refers to competent suits filed in courts seized with the requisite jurisdiction to entertain them. The general power of the court to transfer suits under section 18 of the Civil Procedure Act cannot, therefore, be exercised in a matter where the suit was filed in a court without jurisdiction. In Equity Bank Limited vs Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR, the Court of Appeal held 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 a 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 the Court lacks jurisdiction 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 same…”
18. In the present case, the Plaintiff’s principal argument is that the original suit was competently filed, as the initial claim of Kshs. 18,614,644/= was within the subordinate court’s jurisdiction, and it is only the amendment that pushed the claim beyond the statutory limit. It was further submitted that the excess value was occasioned by a forensic audit conducted after the initial filing, and thus the Plaintiff should not be penalized for an honest mistake.
19. The Defendant, on the other hand, cited Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [supra], where the Court of Appeal emphatically held that it is illegal for the High Court to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction, since such a suit is a nullity ab initio and there exists nothing to transfer.
17. The jurisprudence is clear and settled. Section 18 of the Civil Procedure Act does not empower the High Court to breathe life into a suit that is void for want of jurisdiction. The rationale is simple: jurisdiction is conferred by statute, not by the will of the parties or by curative judicial discretion. The Court in Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR expressed the same principle:
“Where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. A suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity is in the eyes of the law nothing, and therefore the court cannot purport to transfer nothing and mould it into something.”
20. The question that remains is whether the Magistrate’s Court had jurisdiction at the time the suit was instituted. The Plaintiff’s initial claim fell within the jurisdiction, but upon amendment increasing the special damages to Kshs. 25,852,756/=, the court was divested of jurisdiction. From that point onwards, the proceedings became a nullity.
21. The Plaintiff ought to have withdrawn the suit and filed a fresh one in the proper forum. To invite this Court to transfer such a suit would be to sanctify an illegality and to act contrary to binding precedent.
22. In the premises, I therefore find that Milimani CMCC No. E175 of 2023, having been rendered incompetent by the amendment that took the claim beyond the pecuniary jurisdiction of the Magistrate’s Court, cannot be transferred to this Court under Section 18 of the Civil Procedure Act.
23. In the result, and for the reasons set out above, this Court finds that the Originating Summons dated 20th November 2024 is incompetent and devoid of merit. The same is hereby dismissed with costs to the Defendant.
24. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH OCTOBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A……………...for the Applicant
Mwangi………..... for the Respondent
'