REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MIGORI MISCELLENEOUS CIVIL APPLICATION NO. E057 OF 2025 JOSEPHINE ATIENO OBINGO............................................................APPLICANT VERSUS ABSA BANK KENYA PLC.....………………………………………...1ST RESPONDENT LEGACY AUCTIONEERING SERVICES.......................................2ND RESPONDENT RULING The application before this court is dated 3 rd September 2025 seeks orders for transfer of Migori CMCC NO. E117 of 2025 to Rongo SPMC for hearing and determination for reasons the Respondent disputed jurisdiction of the court as subject was situate within Kamagambo/Kongudi/1622 land the LR NO geographical jurisdiction of Rongo SPMC. The application was made pursuant to a court order made on 26th August 2025 directing that the Applicant had 2 months within which to have the suit transferred to the proper court. The application was opposed by the Respondent’s Replying Affidavit sworn by SAMUEL NJUGUNA. Directions were taken for hearing of the application by way of written submissions and the Applicant filed submissions dated 29th October, 2025 whereas the Respondent filed submissions dated 14 th November, 2025. This court has considered the application, the grounds, the supporting Affidavit, the Replying Affidavit as well as respective submissions by the parties and do find that the issue arising for determination is CIVIL MISC APP. NO. E057 OF 2025 1
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whether this court can order the transfer of Migori CMCC No. E117 of 2025 to Rongo SPMC after the question of territorial jurisdiction had been raised before the subordinate court. The power of the High Court to transfer suits from one subordinate court to another is donated by Section 18 of the Civil Procedure Act. The court may at any stage withdraw or transfer any suit pending before a subordinate court competent to try the same. Further, under Section 15 of the Civil Procedure Act, suits concerning immovable property ought to be instituted within the local limits of whose jurisdiction the property is situate. In the present matter, it is not disputed that the subject property namely LR No. Kamagambo/Kongudi/1622 is situated within the geographical jurisdiction of Rongo SPMC. It is also evident from the material placed before this court that the issue of territorial jurisdiction was raised before the Migori court and consequently the said court on 26th August 2025 directed the Applicant to move the court appropriately within two months for transfer of the matter to the proper court. The Respondent opposed the application. However, the objection relates to territorial jurisdiction as opposed to pecuniary or subject matter jurisdiction. Territorial jurisdiction is procedural and does not go to the root of the competence of the court in the same manner as want of subject matter jurisdiction. The defect is therefore curable through transfer where the receiving court is otherwise competent to hear and determine the dispute. CIVIL MISC APP. NO. E057 OF 2025 2
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The court is guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act which obligates the court to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. Striking out the suit and requiring parties to commence fresh proceedings would occasion unnecessary delay and expense yet there exists a competent court capable of hearing the dispute. Accordingly, this court finds merit in the Notice of Motion dated 3rd September 2025 and makes the following orders: 1. Migori CMCC No. E117 of 2025 be and is hereby transferred to Rongo Senior Principal Magistrate’s Court for hearing and determination. 2. The Deputy Registrar of this court shall facilitate the transfer of the lower court file forthwith. 3. Costs of the application shall abide the outcome of the suit. It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026. ANNE ONG’INJO JUDGE In the Presence of Victor/ Calvins – Court Assistants Applicant – Respondent - CIVIL MISC APP. NO. E057 OF 2025 3
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