Paul Wanderi Ndung’u v Pevans East Africa Limited & 1 other

parties and subject matter, was purportedly filed and that in the absence of any clearly written ruling or order transferring the dispute between the parties, the primary suit is wrongly before the subordinate court. 4. The Applicant has stated, further, that prior to the purported transfer, he was never served with summons to enter appearance and therefore had no prior notice of existence of the first claim; that the first claim, which gave rise to the primary suit, is similar to the second claim, namely HCCOM No. E162 of 2022 (the third claim) and that the Applicant recently filed an application dated 27/09/2025 before the Court of Appeal, seeking a consolidation of all matters emanating from disputes following the collapse of the 1st Respondent, which application was certified urgent by the Court of Appeal on 1/10/2025. 5. The Applicant has stated that it is necessary that all the matters, including the first claim which upon transfer gave rise to the primary suit, be heard together so as to prevent a situation where different courts arrive at varying decisions in the respective claims; that it is therefore in the interest of justice that the Motion be allowed as prayed and that unless the prayers sought are granted, he stands to suffer grave prejudice and injustice. Replying Affidavit 6. The 1st Respondent has opposed the Motion through a Replying Affidavit sworn by its Director and Corporation Secretary, Robert Macharia, on 2/12/2025 in which it is deposed that the instant Motion constitutes an abuse of the court process for the reason that the matter was lawfully transferred to the subordinate court in 2022 by way of an order made in the presence of the parties; that the transfer order was never challenged through an appeal or set aside, therefore making the instant Motion an afterthought; that following the transfer of the matter, the parties herein attended and fully participated in the pre-trial conference relating to the primary suit and the matter was set down for hearing by a consent of the parties and that it is thus clear that the instant Motion is a tactic aimed at delaying the progress of the primary suit. 7. It is further deposed that the primary suit differs from the second and third claims in this sense; that while the primary suit relates to an alleged defamatory publication made on or about 1/11/2020 and subsequently republished on various subsequent dates, the second claim did not arise from the same facts; that in addition, the third claim constitutes an entirely separate cause of action touching on the Applicant’s expulsion from the membership of the 1st Respondent; that contrary to what is stated in the Supporting Affidavit, the Applicant filed a statement of defence and the pre-trial documents in the primary suit and that the order to transfer the matter was made by Meoli, J and not Sergon, J. as earlier averred. The Respondent has therefore urged this court to decline to grant the prayers sought in the Motion. Oral Submissions 8. The Motion was canvassed through oral arguments. Mr. Aukot, counsel for the Applicant, relied on the grounds supporting the Motion and argued that the instant Motion is anchored on the averment that both the primary suit and the second claim arose from similar facts, being the running down of the 1st Respondent, hence the primary suit should not be determined in isolation. He argued that the Applicant was never served with a notice of transfer of the matter to the subordinate court and that the key facts in the primary suit relate to those in the second and third claims, thereby making it necessary for to transfer the matter to pave way for the matters to be heard together, as prayed in the Motion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7421/eng@2026-04-16 2

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9. Mr. Willis Otieno, advocate for the 1st Respondent, relied on the Replying Affidavit and submitted that the instant Motion is not supported by a competent affidavit, since the Supporting Affidavit was sworn on 12/11/2025, yet the Motion is dated 24/11/2025; that consequently, the Motion ought to be struck out on that basis. 10. On the merits of the Motion, counsel reiterated the averments made in the Replying Affidavit, that the order transferring the case to the lower court has not been challenged, varied or set aside; thereby making it binding upon the parties; that parties complied with pre-trial directions in the primary suit and the matter was fixed for hearing on two (2) separate occasions but was adjourned in both instances and that it is apparent that the instant Motion is intended to delay the proceedings in the primary suit. 11. It is the counsel’s contention that the subject matter in the primary suit is purely defamation, while the second claim relates to other separate publications and involves multiple persons who are not parties to the present proceedings. He submitted that the matter was properly transferred to the subordinate court and hence the Motion ought to be dismissed accordingly. 12. In a brief rejoinder, Mr. Aukot submitted that the error in dates in the Applicant’s Supporting Affidavit is inadvertent and does not impact the merits of the Motion; that the facts stated in the said affidavit are not denied and the court is therefore urged to decline to expunge it; that no reasons were given for transferring the first claim and that a similar matter, the second claim, is now pending before the High Court. Analysis and Determination 13. I have considered the Motion and the Replying Affidavit in opposition as well as oral arguments. I have noted the 1st Respondent’s submissions to have the Motion struck out for the reason that it is supported by an incompetent affidavit that bears a different date than the date cited in the Motion. It is true, as shown in the record that the Motion is dated 24/11/2025 while the Supporting Affidavit is stated to have been sworn on 12/11/2025. I have noted the explanation offered that the variance in the dates between the Motion and the Supporting Affidavit was due to an inadvertent error. I have considered this issue, I did not find any evidence demonstrating that the variance in dates would in any way affect the substance and merits of the Motion or in any way prejudice the Respondents. It is my considered view that this is an error that is curable by the application of the principles of substantive justice. I therefore decline to strike out the Motion as sought or at all. 14. Turning to the merits of the Motion, I have considered the Motion. The substantive prayer sought is the withdrawal and transfer of the primary suit to the High Court, Civil Division for hearing and determination. The Motion is brought under Sections 17 and 18 of the CPA. Section 17 gives this Court power to transfer a suit which may be instituted in more than one subordinate court. To my mind, this section is not applicable in the circumstances presently before me. 15. I however find relevance in Section 18, which is expressed thus: (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 — https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7421/eng@2026-04-16 3

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(2) (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. Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.” 16. It is my view that the order for retransfer is sought within the context of a review and/or variation of the orders made by this court transferring the matter to the lower court. The applicable principles for review of court orders found under Section 80 of the CPA and Order 45 of the CPR to the effect that any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay (emphasis added). 17. The Applicant must demonstrate that there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made; or some mistake or error apparent on the face of the record, or show any other sufficient reason to warrant a grant of the orders he is seeking. 18. My perusal and understanding of the Motion and the supporting documents, disclose that the Motion rides on the principles of ‘error apparent on the face of the record’ and ‘sufficient reason.’ 19. In Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243, the Court of Appeal stated as follows on the principle of error apparent on the face of the record: “ In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a longdrawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record…”(emphasis added). 20. The Applicant before this Court must demonstrate a self-evident error apparent on the face of the record, an error that does not require elaborate arguments to support. 21. The Applicant’s averment is that the transfer order was issued without notice and that no reasons explaining the transfer were set out on the face of the record. 22. I have read the copy of the Plaint dated 19/11/2020 in respect of the first claim, attached to the Replying Affidavit as Annexure “RM-1”, I observed that the Applicant filed the first claim at the High https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7421/eng@2026-04-16 4

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Court, Civil Division. From the court record, the suit was transferred by this Court (Meoli, J.), who, while exercising her administrative functions under Section 18 of the CPA, transferred, suo motu, the first claim to the subordinate court vide an order made on 7/12/2021 thereby giving rise to the primary suit. 23. From my consideration of the foregoing, I have not come across anything to indicate any error on the part of the learned Judge, in making the order for transfer. I am therefore not persuaded that the Applicant has demonstrated the existence of any error or mistake apparent on the face of the record, within the definition set out above, which error which would warrant a review of the aforementioned order. 24. On the principle of ‘sufficient reason’ I have considered the Applicant’s assertions that the facts in the primary suit relate to those arising in the second claim, which would necessitate an order of transfer so as to pave the way for the two (2) matters to be heard together with other related matters pertaining to the 1st Respondent. 25. I have likewise considered the rival averments by the 1st Respondent that the claims in question are unrelated. My perusal of Annexure “RM-1”, the Plaint dated 19/11/2020, shows that the first claim is founded on the tort of defamation based on an impugned publication made on 1/11/2020. The reliefs sought therein include a permanent injunction, general, exemplary and aggravated damages and costs of the suit. 26. Upon my perusal of the record and more specifically a copy of the Plaint dated 31/01/2022 relating to the second claim and annexed to the Replying Affidavit as Annexure “RM-5”, it is clear that it was filed by the 1st Respondent and other persons not before this court, against the Applicant, the 2nd Respondent and other persons not before this court. The said claim relates to the tort of defamation in respect of the publications made on 31/12/2021 and on various dates subsequently, and seeks various reliefs including permanent and mandatory injunctions, general damages for libel and slander, damages for loss of business, distress, violation of various rights, among other reliefs. 27. Also annexed to the Replying Affidavit of the 1st Respondent’s Corporation Secretary is a copy of the Plaint dated 6/01/2023, marked as Annexure “RM-6” relating to the third claim filed by the 1st Respondent against the Applicant and another person not before this court. The claim relates to alleged unlawful acts by the defendants therein, in the management and running of the 1st Respondent. The reliefs sought therein entail a permanent injunction, general damages for loss of business, costs of the suit and interest thereon. 28. From my consideration of the above-referenced documents, I have not come across anything to indicate that they are so related as to necessitate the prayers sought herein. In my considered view, even if it were the case that the various claims arose from similar or related facts, it is clear that the causes of action in the respective claims are distinct in nature. 29. Further to the foregoing, it is my observation that the 1st Respondent tendered credible material by way of Annexure “RM-7” to support its averments that following the transfer order, the Applicant filed his statement of defence and pre-trial documents, therefore participating in the primary suit proceedings. Having submitted himself to the jurisdiction of the subordinate court, the Applicant cannot be heard to turn around and now claim that the primary suit is wrongly before that same court. 30. My consideration of the totality of the material placed before this court shows that the Applicant has not met the threshold for grant of the orders he is seeking. He has failed to demonstrate that the subject matter of the dispute cannot be appropriately determined by the subordinate court. I find no sufficient https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7421/eng@2026-04-16 5

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grounds warranting a review of the order made on 7/12/2021 transferring the subject suit to the lower court. 31. Consequently, I am not persuaded to exercise my discretion in favour of granting the orders sought in the Application and therefore, the Notice of Motion dated 24/11/2025 is hereby dismissed with costs. 32. It is so ordered. DATED, SIGNED AND DELIVERED THIS 16TH APRIL 2026. S. N. MUTUKU JUDGE In the presence of: Mr. Aukot and Ms Kosgei for the Applicant Mr Willis Otieno for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7421/eng@2026-04-16 6

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