Diamond Housing Limited v Omar & another (Miscellaneous Civil Application E063 of 2025) [2026] KEELC 1447 (KLR)
The bottom line
#The High Court cannot transfer a lawsuit filed in a court without jurisdiction — such a suit must simply be withdrawn and filed afresh in the right court.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court has jurisdiction under Section 18 of the Civil Procedure Act to withdraw and transfer MCELC Case No. E072 of 2021 from the Kilifi Magistrate's Court to the High Court
The application was dismissed. The transfer power under Section 18 applies only to competent suits filed in courts with requisite jurisdiction; the intended amendment would raise the claim above the Chief Magistrate's pecuniary jurisdiction of Kshs. 20,000,000, ousting the Magistrates' Court's jurisdiction and rendering the suit a nullity, so it cannot be transferred.
Sections 18 and 19 of the Civil Procedure Act authorise the High Court to withdraw and transfer suits at any stage on application or suo moto in exercise of its supervisory jurisdiction. However, that power presupposes the suit was filed in a court with jurisdiction. Relying on the Supreme Court's decision in Albert Chaurembo Mumba and the Court of Appeal in Phoenix of E.A. Assurance, the court held that a suit filed without jurisdiction is a nullity and not transferable; the proper course is to withdraw it and file in the appropriate forum.
Costs of the application
The applicant was ordered to pay costs, the application having been dismissed.
Having framed costs as an issue for determination and dismissed the Notice of Motion, the court made no separate reasoned findings on costs beyond the dismissal order.
Legal principles established
#- An order for transfer of a suit from one court to another cannot be made unless the suit has been brought in the first instance to a court which has jurisdiction to try it; parties cannot consent to confer jurisdiction where the law does not provide it.
- The High Court's power under Section 18 of the Civil Procedure Act applies only to competent suits filed in courts with the requisite jurisdiction; it cannot be exercised over a suit filed in a court lacking jurisdiction.
- Where a suit is filed without jurisdiction, the remedy is to withdraw it and file a compliant one in the court seized of jurisdiction; a suit filed devoid of jurisdiction is a nullity and not transferable.
Court orders
#- 1.The Notice of Motion dated 19th November 2025 is dismissed with costs
- Jurisdiction invoked
- Sections 18 and 19 of the Civil Procedure Act (Cap 21) - High Court's power to withdraw and transfer suits pending in subordinate courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Housing Limited v Omar & another (Miscellaneous Civil Application E063 of 2025) [2026] KEELC 1447 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 19th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1447/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.