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ELCDismissedApplication dated 16/1/2020 (Nairobi CMCC No. 1536 of 2019 consolidated with Milimani Misc. Civil Application No. 601 of 2019)· [2021] KEELC 2250 (KLR)

Agnes Nyambura Munga t/a Unisex Aero Salon & another v Convest Holdings Limited & 2 others [2021] KEELC 2250 (KLR)

High Court of Kenya
9 August 2021
KBK. BOR
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to transfer a case from the Magistrate's Court because the applicants failed to attach the pleadings needed to prove jurisdiction.

What this practically means

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Executive summary

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The applicants, plaintiffs in Nairobi Chief Magistrate's Court Civil Suit No. 1536 of 2019 (consolidated with Milimani Misc. Civil Application No. 601 of 2019), applied by notice of motion dated 16 January 2020 for a stay of the consolidated suit, for the High Court to call for and transfer the file to itself, and for the court to exercise its supervisory jurisdiction to ensure expeditious hearing. They contended that although the suit was within the Chief Magistrate's pecuniary jurisdiction when filed, the claim, which stood at Kshs 12,903,086.40 under an amended plaint of 14 October 2019, had risen to about Kshs 25,806,172.80 by May 2020, exceeding that jurisdiction. The respondents, through the affidavit of Haren Patel, opposed, arguing that a suit filed in a court without jurisdiction is a nullity that cannot be transferred, that the applicants should withdraw and refile, and that the 1st respondent's counterclaim was properly before the magistrate's court. In a ruling delivered virtually at Nairobi on 9 August 2021, K. Bor J declined the application. The court found the applicants had failed to exhibit the pleadings filed in the Magistrate's Court, attaching only BPRT documents, an illegible CR 12, agreements, photographs and auctioneer proclamations, with numerous unpaginated documents and a missing affidavit. Without the pleadings, the court could not determine whether the subordinate court had jurisdiction or whether transfer was warranted. The application was dismissed with no orders as to costs.

Key legal issues

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Whether the High Court should stay, call for and transfer the consolidated Magistrate's Court suit on the ground that the claim had grown beyond the Magistrate's Court's pecuniary jurisdiction

Holding

The application was declined because the applicants failed to exhibit the pleadings filed in the Magistrate's Court, without which the court could not determine whether the subordinate court had jurisdiction when the suit was filed

Reasoning

The applicants attached only BPRT documents, an illegible CR 12, an illegible agreement, photographs, proclamations and a copy of an application before the Chief Magistrate's Court, but not the pleadings. Jurisdiction is determined by the claim as filed, not by subsequently accruing damages, and the claim figures were only asserted in submissions. The court also noted numerous unpaginated documents and missing affidavits, including the Haren Patel affidavit referred to in responses. On that evidential state, no finding on jurisdiction or transfer could be made.

p. 2

Legal principles established

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  • A party seeking transfer of a suit on grounds of pecuniary jurisdiction must place before the court the pleadings filed in the subordinate court, since the claim as filed at institution determines jurisdiction
  • Parties must plead their cases precisely and file paginated, intelligible documents to enable the court to discern the orders sought

Court orders

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  1. 1.The court declines to grant the orders sought in the application dated 16/1/2020
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B
  • Companies ActCR 12
Jurisdiction invoked
Supervisory jurisdiction of the High Court under the Constitution (Article 165 read with transfer powers under the Civil Procedure Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agnes Nyambura Munga t/a Unisex Aero Salon & another v Convest Holdings Limited & 2 others [2021] KEELC 2250 (KLR)", Case Analysis (2021). Application dated 16/1/2020 (Nairobi CMCC No. 1536 of 2019 consolidated with Milimani Misc. Civil Application No. 601 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2250/eng@2021-08-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.