Medix East Africa Limited v County Government of Trans Nzoia

3. The Application is opposed through a Replying Affidavit sworn by Respondent’s County Secretary, Truphosa Amere on 6.02.2026 in which she has deposed that the Respondent is a stranger to the suit whose transfer is presently sought; that the Respondent has never been served with pleadings in respect of the said suit and that there is no record of the existence of such suit at the Milimani Commercial Courts’ Registry, whether physically or electronically. 4. It was deposed that upon the Respondent’s inquiry, the registry staff at Milimani Commercial Courts reverted by stating that the case number and parties cited in the suit are incorrect; that the plaint annexed to the instant Application and its supporting affidavit bears no case number and/or official court stamp and that no proof of payment of court fees has been tendered in that respect. 5. Further, the deponent has stated that a court of law cannot make an order for transfer of a matter which was filed in a court lacking jurisdiction in the first instance and that in the present case, since the cause of action is purported to have arisen in Kitale in Trans Nzoia County, the suit was wrongly filed in Nairobi thereby rendering it incompetent ab initio. 6. The Applicant filed a Supplementary Affidavit sworn by Solomon Kuria on 11/02/2026, in which he has deposed that the matter whose transfer is sought is in fact MCCC No. E5893 of 2020 and not MCCOMMSU No. 5823 of 2020 referenced by the Respondent. That the Respondent provided the registry with an erroneous case citation, which therefore rendered erroneous results. That in addition, the Respondent has not tendered a Certificate of Electronic Evidence to support the assertions that the documents annexed to the Replying Affidavit were electronically printed. 7. The deponent has similarly stated that prior to the instant Motion, the suit came up before the subordinate court on various occasions and that there is documentation to support these averments and that unless the prayers sought are granted, the Applicant stands to suffer great prejudice and irreparable harm. Submissions 8. Parties argued their case on 17/2/2026. In support of the Applications, Ms. Okoth advocate for the Applicant, restated the averments earlier made regarding the nature of the suit and the reliefs sought therein, as well as the provisions under which the Motion has been brought. More specifically, the advocate relied on Section 18 of the CPR which gives the High Court powers to withdraw and transfer suits. Counsel relied on Julius Lekuruito & another v Nottingham Mwangi & another [2018] KEHC 662 (KLR) to support that argument. 9. She submitted, further, that what is primarily in issue in this matter is the territorial jurisdiction to entertain the suit, which is jurisdiction is distinct from pecuniary jurisdiction being referred to by the Respondent. She submitted that the High Court has the power to transfer a matter to a court having the requisite territorial jurisdiction, as was done in the case of Waweru v Prime Auto Solutions Limited [2024] KEHC 1971 (KLR). 10. It is the advocate’s argument that the initial filing of the suit before the wrong court was due to an inadvertence on the part of the Applicant’s former advocates and for which the Applicant should not be punished. She relied on Peter Kipyegon Kirui v Agricultural Dev. Co-operation & 2 Others [2007] KEHC 822 (KLR) where it was held that the mistake of counsel should not be visited upon the client and that there is electronic evidence supporting the existence of the suit. 11. In opposing the Application, Ms. Moenga, counsel for the Respondent, relied on the averments made in the Replying Affidavit and maintained that the suit particulars are non-existent as established by the subordinate court records; that the Respondent was never served with any pleadings relating to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7477/eng@2026-04-27 2

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the purported suit; that MCCC No. E5893 of 2020 referenced in the Supplementary Affidavit to the Application refers to an entirely different matter from the suit and that in the circumstances, the orders sought relates to a non-existent suit and given the legal principle that parties are bound by their pleadings, the prayer sought cannot be granted. 12. Counsel submitted, further, that a suit which is filed before a court lacking jurisdiction is a nullity, and that jurisdiction is fundamental to a matter and must therefore exist at the onset, before a transfer order can be considered or made, as reaffirmed by the Court of Appeal in the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR. She submitted tehat in this instance, there is no competent suit capable of being transferred. 13. It is thus counsel’s closing submission that the instant Motion should be declined, with costs. 14. In a rejoinder, Ms. Okoth submitted that the case search undertaken by the Respondent was erroneously cited; that sufficient material has been tendered to demonstrate the existence of the suit and that no prejudice will be visited upon the Respondent if the Application succeeds as prayed. Determination 15. I have considered the Application, the Replying Affidavit and the submissions of the parties. The issue has been raised touching on whether the orders sought relates to an existing suit, with the Applicant saying there is such a suit in the system and the Respondent denied that is the case. 16. From the record, it is clear that the orders sought relate to Milimani Commercial Case No. Nairobi MCCC No. E5823 of 2020 as set out under prayer (1) of the Application. The aforementioned suit is further referenced in the supporting affidavit to the Notice of Motion, accompanied by the Applicant’s pleadings marked as Annexure “SK” . Upon my perusal of the said annexures, it is clear that the same neither contain a case number nor bear any official court stamp. 17. Upon my further study of the material placed before me, I have observed that going by the annexures tendered by the Respondent and marked as Annexure “TA-1” a case search was undertaken with the particulars of MCCOMMSU No. 5823 of 2020 the result of which no such case citation was found. The Respondent further tendered Annexure “TA-2” being a letter dated 3/02/2026 addressed to the Executive Officer-Milimani Commercial Courts, inquiring on the existence of Nairobi MCCC No. E5823 of 2020 (the suit). The said letter contains a handwritten note said to emanate from the Court Administrator-Peter Ayieko, indicating that the referenced case number does not relate to the parties herein. 18. As earlier mentioned, various documentation was annexed to the supplementary affidavit further supporting the Motion and marked as Annexures “SK-1”, “SK-2”, “SK-3” and “SK-4”, to indicate the existence of MCCC No. E5893 of 2020 which purportedly constitutes the matter whose transfer is presently sought. 19. From my consideration of the above, while it is apparent that there plausibly exists MCCC No. E5893 of 2020 involving the parties herein, it remains clear that the prayers sought in the Motion and restated by the Applicant’s advocate, are in respect of MCCC No. E5823 of 2020 which appears to constitute an entirely different matter. Going by the record, neither the Applicant nor its advocate sought to clarify or make any amendments to the prayers sought, thereby creating an uncertainty and confusion regarding the specific case to which the transfer order relates. 20. In view of the foregoing circumstances and particularly the lack of clarity on the claim upon which a transfer is sought, I am hesitant to consider the merits of the instant Motion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7477/eng@2026-04-27 3

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21. The second preliminary issue touches on the jurisdiction of this court to grant the prayer for transfer sought. In this regard, the Respondent’s averment and argument in sum is that no transfer order can be made on a suit which is incompetent ab initio, for having been filed in the wrong forum. The Applicant, on the other hand, has maintained that the issue arising relates to territorial jurisdiction rather than the pecuniary jurisdiction of the subordinate court, to entertain the suit. 22. The legal principle is that jurisdiction is everything and that without it, a court cannot perform any further action in a matter. I have read the relevant provisions of the law on this issue. Section 17 of the CPA which expresses that: Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed. 23. Section 18 of the same Act which is cited in the instant Motion, makes provision for the withdrawal and transfer of suits by the High Court, and reads as follows: (1) (2) 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 — (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. 24. It is clear that the High Court is bestowed with the power to withdraw and transfer suits in the manner stipulated under the above provisions. 25. In the present matter, it is not disputed that the suit was purportedly filed at the Chief Magistrate’s Court situated in Milimani Commercial Courts. From the respective averments made, there is nothing to indicate that the pecuniary jurisdiction of the subordinate court is denied; what is in issue is the territorial jurisdiction of the said court to entertain the suit. 26. That being the case, it has been established that Section 18 of the CPA empowers the High Court to withdraw and transfer suits from one subordinate court to another having competent jurisdiction, as https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7477/eng@2026-04-27 4

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the case may be. Moreover, the term ‘territorial jurisdiction’ is different from ‘pecuniary jurisdiction.’ While territorial jurisdiction refers to the locality or geographical location in which a court is situated or the cause of action arose, pecuniary jurisdiction goes to the root of a court’s competency to entertain a claim. This position was acknowledged by the court in the case of Gitere v Salene Credit Limited & another [2025] KEHC 11764 (KLR) in the following manner: “ It is manifest that what is in issue here is the question of ‘territorial jurisdiction’ which relates to the ‘location’ of the court in which the suit ought to be filed. ‘Territorial jurisdiction’ is distinguishable from ‘pecuniary jurisdiction’. The former is more of an administrative function to ensure that courts are not clogged with suits which ought to have been filed in a court in a different geographical location. Pecuniary jurisdiction relates to the competency of a court to entertain a particular matter.” 27. Furthermore, the High Court has in the exercise of its powers under Sections 17 and 18 of the CPA withdrawn and transferred suits from one subordinate court to another, including the decision in Waweru v Prime Auto Solutions Limited [2024] KEHC 1971 (KLR) cited by the Applicant’s advocate, where the court considered and allowed an application seeking to transfer a suits from one subordinate court to another. 28. In view of all the foregoing circumstances, I respectfully disagree with the Respondent’s argument that this court lacks jurisdiction to make an order for transfer of a matter from one subordinate court to another, on the basis that the same was filed before a court lacking territorial jurisdiction. 29. The above finding notwithstanding, it is my considered view that given the confusion as to which case the Applicant is referring to and due to the failure of the Applicant to clarify and present evidence that the case sought to be transferred exists in the Milimani Chief Magistrates Commercial Court’s electronic system, this court is not able to grant the prayers sought. 30. Consequently, my finding is that the Notice of Motion dated 8/12/2025 is hereby struck out with costs to the Respondent. Further, it is my considered view that nothing stops the Applicant from approaching this court with proper particulars of the case sought to be transferred and seek appropriate orders. 31. Orders shall be issued accordingly. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF APRIL 2026. S. N. MUTUKU JUDGE In the presence of: 1. Mr. Odhiambo for Mr. Okoth for the Applicant 2. Ms Moenga for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7477/eng@2026-04-27 5

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