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

4. When some of the matters in this series came up for directions before this court on 17th April 2025, for ease of determination and saving precious judicial time, parties herein recorded a consent to the effect that all those matters in the series be consolidated. Misc. Appl. No. E028 of 2025 was adopted as the lead file. The parties also consented to canvass the Notices of Preliminary Objection in all the sixty – three (63) matters by way of written submissions. 5. Against this backdrop, this ruling determines all the Notices of Preliminary Objection filed by the Respondent in the sixty – three (63) matters in this series. ANALYSIS & DETERMINATION 6. This court has duly considered either parties' pleadings, written submissions, and the authorities relied upon. The only issue that commends to this court for determination is whether the Notices of Preliminary Objection filed in the matters set out above are merited. 7. The Preliminary Objections in Misc. Applications No. E028-38, 40-61, 63-91, all of 2025 were grounded on the ground that this court lacked the territorial jurisdiction to hear and determine those Applications, given that the cause of action in those matters arose outside the territorial limits of this court. 8. The Respondent submitted that the instructing party in all those Applications was its head office in Nairobi. 9. Given the above, the Respondent also submitted that by dint of section 15 of the Civil Procedure Act, this court lacked the territorial jurisdiction to handle the Miscellaneous Applications before it. 10. Regarding Misc. Appl. No. E039 of 2025, the Respondent averred that the Notice of Motion therein was fatally defective for want of a Supporting Affidavit contrary to the provisions of Order 51 Rule 4 of the Civil Procedure Rules. Kitale SCC CC. No. E047 of 2024 Page 2 of 9 Judgment

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11. The Applicant’s written submissions did not address the fate of Misc. Appl. No. E039 of 2025. 12. The Applicant conceded that the cause of action in Misc. Applications No. E028-38, 40-61, 63-91, all of 2025 arose outside the territorial limits of this court; Uasin Gishu and Trans-Nzoia counties. The Applicant added that he filed those matters before this court since the instructing party also runs its banking business in Bungoma town. 13. Section 15 of the Civil Procedure Act governs the territorial jurisdiction of Magistrates' Courts for civil matters. It provides thus:“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction: a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain or b) ………………………….. c) the cause of action wholly or in part, arises. Explanation (2): – A corporation shall be deemed to carry on business at its sole or principal office in Kenya, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place”. 14. Applying the above sections to the issue before this court, this court finds that the Respondent carries out business in Bungoma, Uasin Gishu, and Trans-Nzoia Counties as per the explanation (2) above. The Respondent’s principal office is in Nairobi County. That being the case the Respondent could be sued in Bungoma, Uasin Gishu, Trans-Nzoia, and Nairobi counties. 15. However, it should be remembered that a wholesome reading of explanation (2) above shows that the Respondent could only be sued in Bungoma where it runs a subordinate office if the cause of action in a matter arose within Bungoma. The mere fact that the Respondent runs a subordinate office in Bungoma does not permit a litigant whose cause of action arose outside the territorial limits of Bungoma Law Courts to file a suit at Bungoma Law Courts against the Respondent. 16. The foregoing shows that the Applicant’s submission that he filed matters whose cause of action arose outside the territorial limits of this court in this court on the basis that the Respondent runs business in Bungoma lacks the limbs to stand on in law. Kitale SCC CC. No. E047 of 2024 Page 3 of 9 Judgment

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17. The upshot of the above is that this court lacks the territorial jurisdiction to hear and determine Misc. Applications No. E028-38, 4061, 63-91 all of 2025. 18. Turning to the issue of whether Misc. Appl. No. E039 of 2025 is fatally defective for want of a Supporting Affidavit, the Respondent urged this court to consider the provisions of Order 51 Rule 4 of the Civil Procedure Rules. 19. The said Respondent also relied on the case of Simon Muteti Mutune v Cooperative Bank Limited (2015) eKLR and urged this court to find that Misc. Appl. No. E039 of 2025 was fatally defective. 20. The reasoning in the Simon Muteti Mutune case (supra) was relied on in University of Nairobi v George Sifuna (2021) eKLR where an application for want of prosecution was dismissed for failure to annex an affidavit in support of the application in the following words:“An application without a Supporting Affidavit lacks in a material way. It is filed against the Rules of the Court. Such stands alone as unsupported. This is not a mere technicality that can be cured in any manner by the court. it has to suffer the obvious. Being struck off for want of a Supporting Affidavit.” 21. This court has had the benefit of going through the provisions of Order 51 Rule 4 of the Civil Procedure Rules that provides thus: Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served 22. A plain reading of the above provision shows that every Notice of Motion doesn't need to be accompanied by a Supporting Affidavit. A supporting Affidavit is only mandatory where the motion is grounded on Affidavit Evidence. It appears that where the body of a motion spells out with clarity and adequacy the grounds relied upon, such a motion is sufficient in and of itself. 23. This court draws inspiration from the holding by Sergon J in Odero v Flutterwave Payments Technologies Limited (Civil Appeal Kitale SCC CC. No. E047 of 2024 Page 4 of 9 Judgment

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E197 of 2020) [2022] KEHC 3293 (KLR) where the learned judge rendered himself thus on this issue:The case of Simon Muteti Mutune vs Co-operative Bank of Kenya Limited [2015] eKLR that was relied upon by the plaintiff/respondent is distinguishable from the facts of this case as the same had sought injunctive orders in which affidavit evidence was critical before the court could establish whether or not the plaintiff therein was entitled to the orders he had sought. This is equivalent to Order 2 Rule 15 (2) of the Civil Procedure Rules which provides as follows: “No evidence shall be admissible on an application under sub rule 1(a) but the application shall state concisely the grounds on which it is made.” In this matter all facts pertaining to this application are on record. An affidavit may not have added any value….” 24. The foregoing begs the question: was the missing Supporting Affidavit going to add value to the Notice of Motion in Misc. Appl. No. E039 of 2025. A reading of that Application shows that it was supported by the annexed Affidavit of Walter Musungu Muyodi. This shows that all facts about that Application, in the absence of the Supporting Affidavit, were not on record. 25. That omission, without doubt, rendered the impugned Application fatally defective since there was nothing on record for this court to consider in determining whether or not that Application had merit What orders commend to this court 26. This court has already made a finding that Misc. Applications No. E028-38, 40-61, 63-91 all of 2025, are not properly before this court for want of territorial jurisdiction, and that Misc. Appl. No. E039 of 2025 is fatally defective for want of a Supporting Affidavit. Kitale SCC CC. No. E047 of 2024 Page 5 of 9 Judgment

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27. The Respondent submitted that where this court finds that it lacks the territorial jurisdiction to hear and determine the matters herein, the only consequence is for this court to dismiss and/or strike out those matters. 28. Generally speaking, the consequence of finding that a court lacks territorial jurisdiction is dismissing and/or striking out a matter. But will that serve the interests of justice and the overriding objective of the Civil Procedure Act and Article 159 of the Constitution, bearing in mind that the Applicant’s only mistake was to file a case in a court lacking territorial jurisdiction but with the requisite pecuniary jurisdiction? 29. This court is well aware that courts have been urged to be slow in striking out matters. In Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission & 2 Others Civil Appeal (Application) No. 152 of 2009 the Court of Appeal stated thus: “…the initial approach of the courts must now not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out.” (Emphasis added) 30. The overriding objective or the oxygen principle set out in the Civil Procedure Act impose a duty upon this court to handle the matters before it with the purpose of attaining just determination of the proceedings; the timely disposal of the proceedings at a cost affordable to the parties, among other aims. 31. The Applicant paid court fees in all the sixty – three (63) that are the subject of this ruling. The striking out of the matters that this court lacks the territorial jurisdiction to handle will cause the Applicant to Kitale SCC CC. No. E047 of 2024 Page 6 of 9 Judgment

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incur a cost of paying fresh court fees. That is likely to defeat the overriding objective in the Civil Procedure Act and the Constitution. 32. Does the lack of jurisdiction divest a court from making orders that are likely to breathe life to a matter filed in a court without the relevant jurisdiction? This court answers this question in the negative by relying on the holding in Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2020] eKLR where the Court held as follows: “In my view lack of jurisdiction is limited to the handling of the dispute at hand substantially. Transfer or referring cases to the Court with the proper jurisdiction is an administrative matter which is aimed at facilitating the speedy disposition of the case at hand. It has nothing to do with jurisdiction. All what the Court will be saying is that “you have come to the wrong forum, please take your file to the correct forum”. I don't think such an order needs jurisdiction or can be held as null and void. This is my honest view. Further, I do opine that the contrary view will be running against the provisions of Article 159 of the Constitution in relation to procedural technicalities. Justice should not be made expensive to litigants. Striking out the matter would lead to the filing of a fresh suit before the Court with proper jurisdiction. This entails the typing of fresh pleadings, filing the same in Court and paying Court fees afresh. Thereafter service has to be effected upon all the respondents and interested parties. On the other hand, when the matter is referred to the proper Court, the proceedings will start afresh and the file will be allocated a fresh Court file number. I believe such process saves litigants time and money and is in line with the spirit of the Constitution.” 33. The reasoning above was also applied in John Mwangi Karanja v Alfred Ndiangui [2011] eKLR where the Court stated that: “It appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated. What prejudice would any party suffer in that event? After all, the overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act (section 1A (1)). The court itself is enjoined by subsection (2) of that section to seek to give effect to the said overriding objective in exercise of its powers under the Act or the interpretation of any of its provisions.”(Emphasis added) 34. The fate of matters filed in a court without territorial jurisdiction was determined by Musyoka J in 15 Minutes Logistics Limited v Kitale SCC CC. No. E047 of 2024 Page 7 of 9 Judgment

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Mbala (Civil Appeal E928 of 2022) [2024] KEHC 7863 (KLR) (Civ) where the learned judge held thus: “…However, given that subordinate courts, inclusive of the Small Claims Court, have jurisdiction to determine disputes of this nature, the lack of territorial jurisdiction could be addressed, by advising the parties to apply, under section 18 of the Civil Procedure Act, to the High Court, for transfer of the matter to the court having territorial jurisdiction, instead of dismissing the matter….On the third issue, whether the trial court did not consider the reasonable facts, I am not persuaded that the court was not reasonable in the sense of not considering what it ought to have considered. It went wrong on only one critical issue, closing the suit because the court at Nairobi lacked jurisdiction, instead of leaving it to the parties to move the High Court for transfer…”(Emphasis added) 35. Guided by the authorities above, it follows that all the matters that Misc. Applications No. E028-38, 40-61, 63-91 all of 2025, ought to be returned to the registry for the Applicant to move the High Court for appropriate orders under section 18 of the Civil Procedure Act. DISPOSITION 36. The upshot of the foregoing is that the Respondent’s Notices of Preliminary Objection filed in the matters in this series partially succeed in the following terms: a) This court lacks the territorial jurisdiction to hear and determine Misc. Applications No. E028-38, 40-61, and 6391 all of 2025 b) The Misc. Applications No. E028-38, 40-61, & 63-91 all of 2025 be and are hereby returned to the registry for the Auctioneer/Applicant Kitale SCC CC. No. E047 of 2024 Page 8 of 9 to move Judgment the High Court for

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appropriate orders under section 18 of the Civil Procedure Act within thirty (30) days of today, in default, all those matters will be deemed struck out without further reference to this court c) Misc. Appl. No. E039 of 2025 is struck out for want of a Supporting Affidavit d) The instructing Respondent is awarded cumulative costs of Kshs. 90,000/= for prosecuting the Notices of Preliminary Objection in all the sixty- three (63) matters herein 37. It is so ordered. Ruling read, delivered and signed in open court at Bungoma this 15th day of May 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: Ms. Wesonga h/b for Wamalwa for the Applicant Ms. Mureithi for the Respondent C/A: Albert Kitale SCC CC. No. E047 of 2024 Page 9 of 9 Judgment

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