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MagistratePartially AllowedKitale SCC CC. No. E047 of 2024 (lead file: Misc. Appl. No. E028 of 2025)· [2025] KEMC 424 (KLR)

Muyodi t/a Rhemat Auctioneers v Faulu Microfinance Bank Ltd & another (Miscellaneous Application E028 of 2025) [2025] KEMC 424 (KLR)

Small Claims Court
15 May 2025
TOT.O. Omono
2,785 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled it lacked jurisdiction over 62 auctioneer fee claims but saved them from dismissal, giving the auctioneer 30 days to seek a transfer instead.

What this practically means

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Executive summary

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The Applicant auctioneer filed sixty-three Notices of Motion seeking assessment of auctioneer fees and payment by the instructing Respondent bank, arising from executions/repossession allegedly undertaken on the Respondent's behalf. The Respondent filed Notices of Preliminary Objection in all sixty-three matters, which the parties consented to consolidate with Misc. Appl. No. E028 of 2025 as the lead file and canvass by written submissions. Two grounds were raised: lack of territorial jurisdiction under section 15 of the Civil Procedure Act in respect of Misc. Applications No. E028-38, 40-61, 63-91 of 2025, and fatality of Misc. Appl. No. E039 of 2025 for want of a Supporting Affidavit under Order 51 Rule 4 of the Civil Procedure Rules. The Applicant conceded the causes of action arose in Uasin Gishu and Trans-Nzoia counties, arguing only that the Respondent carried on business in Bungoma. The court held that under explanation (2) to section 15 a corporation may be sued at a subordinate office only where the cause of action arose there, so it lacked territorial jurisdiction over the sixty-two applications. However, drawing on the overriding objective, Article 159 and authorities including Ali Jarso Wako and 15 Minutes Logistics Limited v Mbala, it declined to strike them out, instead returning them to the registry for the Applicant to seek transfer to the High Court under section 18 within thirty days, failing which they would be deemed struck out. Misc. Appl. No. E039 of 2025 was struck out because, the motion not being self-contained, the missing Supporting Affidavit left no facts on record. The Respondent was awarded cumulative costs of Kshs. 90,000/= across all sixty-three matters.

Key legal issues

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01

Territorial jurisdiction under section 15 of the Civil Procedure Act

Holding

The court lacks territorial jurisdiction over the sixty-two applications whose causes of action arose in Uasin Gishu and Trans-Nzoia counties; the mere existence of a subordinate office in Bungoma does not confer jurisdiction where the cause of action arose elsewhere.

Reasoning

Explanation (2) to section 15 deems a corporation to carry on business at its sole or principal office, or at the place of a subordinate office in respect of causes of action arising there. Since the Respondent's principal office is in Nairobi and the causes of action arose in Uasin Gishu and Trans-Nzoia, it could not be sued in Bungoma for those claims, and the Applicant conceded this.

p. 4
02

Defectiveness of Misc. Appl. No. E039 of 2025 for want of a Supporting Affidavit

Holding

A Supporting Affidavit is mandatory only where a motion is grounded on affidavit evidence; in E039 the facts were not otherwise on record, so the omission was fatal and the application was struck out.

Reasoning

Order 51 Rule 4 requires an affidavit only where a motion is grounded on affidavit evidence. Unlike the case in Odero v Flutterwave where all facts were on record, in E039 there was no Supporting Affidavit and the facts were therefore absent from the record, leaving the court nothing to consider; the omission was thus fatally defective rather than a curable technicality.

p. 5
03

Consequence of lack of territorial jurisdiction

Holding

Matters filed in a court lacking only territorial jurisdiction should not be automatically struck out; they may be returned to the registry for the party to seek transfer to the proper court under section 18 of the Civil Procedure Act.

Reasoning

Guided by the overriding objective, Article 159, and authorities including Ali Jarso Wako, John Mwangi Karanja and 15 Minutes Logistics Limited v Mbala, the court held that transfer of a suit to the proper forum is a procedural/administrative act that saves litigants time and money. Striking out would force fresh filing fees and pleadings, defeating the overriding objective, so the matters were returned to the registry instead.

p. 8

Legal principles established

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  • Under explanation (2) to section 15 of the Civil Procedure Act, a corporation may be sued at a place where it has a subordinate office only if the cause of action arose at that place.
  • A Notice of Motion need not be accompanied by a Supporting Affidavit unless it is grounded on affidavit evidence; a motion that spells out its grounds adequately may be sufficient in itself.
  • Lack of territorial jurisdiction does not divest a court of power to make orders transferring or referring a matter to the proper forum; transfer is an administrative, procedural matter consistent with Article 159.

Court orders

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  1. 1.Finding that the court lacks territorial jurisdiction to hear and determine Misc. Applications No. E028-38, 40-61, and 63-91 all of 2025
  2. 2.Misc. Applications No. E028-38, 40-61, & 63-91 all of 2025 returned to the registry for the Applicant to move the High Court for appropriate orders under section 18 of the Civil Procedure Act within thirty (30) days, in default of which those matters will be deemed struck out
  3. 3.Misc. Appl. No. E039 of 2025 struck out for want of a Supporting Affidavit
  4. 4.The instructing Respondent awarded cumulative costs of Kshs. 90,000/= for prosecuting the Notices of Preliminary Objection in all sixty-three matters

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 2, 3, 3A, 63, 15, 18
  • Auctioneer RulesRule 7(a),(b),(c); Rule 53
  • Civil Procedure RulesOrder 51 Rule 4; Order 2 Rule 15(2)
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Simon Muteti Mutune v Cooperative Bank Limited
    (2015) eKLR
  • University of Nairobi v George Sifuna
    (2021) eKLR
  • Odero v Flutterwave Payments Technologies Limited
    (Civil Appeal E197 of 2020) [2022] KEHC 3293 (KLR)
  • Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption Commission & 2 Others
    Civil Appeal (Application) No. 152 of 2009
  • Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties)
    [2020] eKLR
  • John Mwangi Karanja v Alfred Ndiangui
    [2011] eKLR
  • 15 Minutes Logistics Limited v Mbala
    (Civil Appeal E928 of 2022) [2024] KEHC 7863 (KLR) (Civ)
Jurisdiction invoked
Sections 1A, 2, 3, 3A and 15 of the Civil Procedure Act; Article 159 of the Constitution (overriding objective)

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, "Muyodi t/a Rhemat Auctioneers v Faulu Microfinance Bank Ltd & another (Miscellaneous Application E028 of 2025) [2025] KEMC 424 (KLR)", Case Analysis (2025). Kitale SCC CC. No. E047 of 2024 (lead file: Misc. Appl. No. E028 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/424/eng@2025-05-15

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