Joyce Otieno Owiri v Douglas Mwendwa Kithiki & 1 other

E580 of 2026, which is marked as ‘J001’. She avers that she has a valid cause of action in tort for material damage against the Respondents which ought to be transferred by rather than dismissed. 5. The Respondents opposes the Notice of Motion. The 1st Respondent swore a Replying Affidavit dated 15th June 2026 and with authority of the 2nd Respondent. The Respondents raised two grounds in opposition to the Application. That it is premature and an abuse of the Court process. 6. According to the Respondents, the Applicant is improperly invoking the supervisory jurisdiction of this court. They state that the Application is being made before the subordinate has made a final and definite determination on the issue of jurisdiction. 7. The Respondents further avers that the Adjudicator in Milimani SCCC E580 of 2026 merely indicated a preliminary view on jurisdiction and slated the matter for a ruling on 19th June 2026. The Applicant has to await the ruling and if aggrieved pursue the appropriate appellate or judicial review mechanisms. 8. It is also contended that the Applicant has rushed to this court without exhausting the remedies available before the Small Claims Court. 9. Learned Counsel on record for the parties orally addressed this Court on 17th June 2026 when the Application came up for hearing. They largely reiterated the averments in the affidavits filed in support and in opposition to the Notice of Motion. 10. I have considered the Motion taking into account the grounds relied upon, the affidavit evidence, the annextures thereto and the submissions of learned counsel on record for the parties. 11. The single issue for determination in this application is whether this Court should interfere with the proceedings pending before the SCC E580 OF 2026 while the issue of jurisdiction is pending determination before that court. 12. In Owners of Motor Vessel “Lillian S” -v- Caltex Oil (Kenya) Ltd 1989 KLR 1, the Court of Appeal held; “ Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.” 13. It is on the basis of the above holding that the issue of whether a Court has jurisdiction to entertain a matter, must of necessity be determined at the preliminary state of a suit. 14. In the present Application, which is expressed to be brought under Section 1A, 1B and 18 of the Civil Procedure Rules and all other enabling provisions of the law, the Applicant is not asking this Court to determine whether or not the Small Claims Court has jurisdiction to hear and determine the rights of the parties in Milimani SCCC E580 of 2026. 15. The Applicant’s position, which counsel on record reiterated during her oral submissions is that she operated under the believe that the Small Claims Court has jurisdiction to hear and determine the subject matter before it. 16. The instant application was triggered by comments purportedly made by the Hon. Adjudicator on 25th May 2026 to the effect that he lacks jurisdiction to handle material damage claims. 17. The fundamental question that would arise is whether the Hon. Adjudicator in making the alleged comments, called upon learned counsel on record for the parties to address him on the issue of jurisdiction before scheduling the matter for Ruling on 19th June 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8778/eng@2026-06-18 2

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18. If indeed the parties were given an opportunity to address the Small Claims Court on the issue of jurisdiction, then they would be deemed to have exercised their right to be heard on this fundamental issue that has the potential effect of determining the fate of an entire suit pending before the Court. It is improbable that the court failed to allow the parties to address it on the issue of jurisdiction. 19. I note however that the Applicant has not placed before this Court the proceedings of 25th May 2026 before the Hon. Adjudicator. This was important to ascertain the above concerns and to appreciate the context in which the court stated it does not have jurisdiction but proceeded to set a ruling date on the very same subject under reference. 20. Be it as it may, I find that the grounds upon which this Application is based are speculative. The Applicant states that the Adjudicator will dismiss the suit. In the premises the Applicant is inviting this Court to pre-empt the outcome of the Ruling to be delivered on 19th June 2026 by the Small Claims Court and on that basis stay proceedings and transfer the suit to the Personal Injury and Material Damage Division in the Milimani Commercial Magistrate’s Court. 21. This Court’s view is that the issue at hand is a pending Ruling on the question of jurisdiction; before the Small Claims Court. The Court has set a date for Ruling. The proper thing to do is to first allow the Small Claims court to pronounce itself on the issue of jurisdiction before intervention by this Court. If aggrieved, the Applicant will be at liberty to exercise her right of appeal and or review as may be appropriate. 22. Whereas this court has supervisory roles over subordinate Courts, it should not entertain applications which are intended to undermine pending proceedings unless there is clear demonstration that the subordinate Court is acting without jurisdiction. In the present Application, there is no clear allegation that the Small Claims Court has no jurisdiction to entertain the suit before it to require this Court to interfere with its proceedings. 23. The other question that would arise is whether this Court can grant the order for transfer of Milimani SCCC E580 of 2026 to the Milimani Commercial Magistrates Court. 24. In the case of David Kabunga v Zikarega & 4 others (Kampala HCC No. 36 of 1995) which was cited with approval in the case of GKK v ANK & another [2021] eKLR, the Court stated as follows“ Section 18 (1)(b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction… it is a well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused…” (emphasis added). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8778/eng@2026-06-18 3

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25. I fully associate myself with the above holding. In the instant case the Applicant has not presented a strong case to the satisfaction of the court that the prayer for transfer ought to be granted. The circumstances of the issues before this court are that transfer before a lower Court pronounces itself on jurisdiction is premature and speculative. The Small Claims Court has not yet found that it lacks jurisdiction. 26. On the contention that the Applicant will suffer loss if the proceedings in the Small Claims Court are not stayed and the case transferred, I find that the window for appeal and or review will be available to the Applicant. 27. In light of the above, I find the Notice of Motion dated 2nd June 2026 to be without merit. It is dismissed with no order as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM. KENNEDY KANDET JUDGE In The Presence Of: No Appearance……………..for The Applicant. No Appearance …………….for The Respondent. Court Assistant: Aggrey. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8778/eng@2026-06-18 4

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