Mawando Limited & another v Thousand Palms Beach Hotel Limited & another; SBM Bank (K) Ltd (Interested Party); Thousand Palms Beach Hotel Limited (Plaintiff to the Counterclaim); Mawando Limited & 3 others (Defendant to the Counterclaim) (Civil Suit 45 of 2012) [2024] KEELC 5504 (KLR)

The court held jurisdiction is donated by the Constitution and statute and cannot be conferred by consent or by the overriding objective. Section 15 of the Civil Procedure Act permits suits where defendants reside or carry on business or where the cause of action arose; here the fraudulent registrations occurred at the 2nd Defendant's Mombasa office. The court also weighed balance of convenience, noting Mombasa is closer to Kikambala than Malindi, and suspected forum shopping given the suit is part-heard twelve years after filing.

Relying on Owners of Motor Vessel 'Lilian S', Equity Bank v Bruce Mutie Mutuku, Phoenix of East Africa Assurance and Albert Chaurembo Mumba (restating Kagenyi v Musiramo), the court affirmed that jurisdiction must exist at filing and that no order for transfer lies unless the transferring court has jurisdiction. The court nonetheless went on to find that it did have jurisdiction over the matter, given the cause of action and parties' connection to Mombasa, and thus no question of transferring an incompetent suit arose.

Invoking Section 27(1) of the Civil Procedure Act and the Harun Mutwiri, Bidco and Hussein Muhumed Sirat decisions, the court applied the settled principle that the successful party is entitled to costs absent compelling reasons. The application having been dismissed, the 1st Defendant, which alone opposed it, was awarded costs payable by the Plaintiffs.