https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8501

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **MISC. APPLICATION NO. E772 OF 2025** **BHAI OMAR AL AMIN..………………….…PLAINTIFF/RESPONDENT** **VERSUS** **ASL CREDIT LIMITED..……………….……DEFENDANT/APPLICANT** **RULING** 1. The Defendant/applicant filed the Notice of Motion dated 25th July 2025 brought pursuant to Section 1A, 3A, 18(1) (b) and (2) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant seeks inter alia 2. *Withdrawal of Milimani CMCC No. 1111 of 2020 Bhai Omar Al Amin vs ASL Credit Limited from the Milimani Chief Magistrate’s court and transferred to the High Court, Commercial & Tax Division for hearing and final determination* 3. *Conditional leave to file its statement of defence and counterclaim, as well as other compliance documents, including a list and bundle of documents out of time.* 4. *Costs should be provided for* 5. The application is premised on the grounds of the face of the record and supported by the annexed affidavit of Daniel Wandera. He avers that the plaintiff’s suit in the subordinate court seeks injunctive relief relating to several motor vehicles financed under hire‑purchase agreements; that the applicant intends to file a Defence and Counterclaim for Kshs.181,704,720/= which exceeds the pecuniary jurisdiction of the Chief Magistrate’s Court; that the High Court has jurisdiction; and that transfer will avoid multiplicity of proceedings, inconvenience and wastage of judicial time. 6. The Respondent filed a replying affidavit sworn by Bhai Omar Al Amin on 15th August 2025 opposing the transfer. He contends that the application is belated and tactical, amounts to an abuse of process, and that the subordinate court properly assumed jurisdiction because, by the time he sued, he had largely repaid the facilities. That the outstanding balance acknowledged by the Applicant was Kshs. 4,864,832/=. 7. Written submissions canvassed the application. The Applicant's submissions are dated 15th December 2025, while the Respondent's submissions are dated 25th February 2026 **Analysis and determination** 1. I have considered the application, the affidavits filed by the parties, and the rival submissions by counsel. The issues that arise for determination are: 2. *Whether the matter ought to be withdrawn from the subordinate court and transferred to the High Court (Commercial & Tax Division);* 3. *Whether conditional leave should be granted to the applicant to file its defence, counterclaim and compliance documents out of time; and* 4. *Who should bear the costs?* 5. The application is principally anchored on **Sections 18(1)(b)** **and (2)** of the **Civil Procedure Act**, which gives the High Court the power to withdraw any suit pending before a subordinate court and either try it itself or transfer it to another court competent to determine it. The section provides as follows; 6. ***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—*** 7. ***…*** 8. ***withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—*** 9. ***try or dispose of the same; or*** 10. ***transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or*** 11. ***retransfer the same for trial or disposal to the court from which it was withdrawn.*** 12. ***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.*** 13. The court's power to transfer suits is discretionary and must be exercised judiciously in furtherance of the overriding objectives of facilitating the just, expeditious, proportionate and affordable resolutions of disputes. 14. The Applicant contends that it intends to lodge a counterclaim in the sum of Kshs. 181,704,720/= arising from the same hire purchase transactions that form the subject matter of the suit. 15. The Respondent, on the other hand, argues that the application has been brought after an inordinate delay of more than five years since the institution of the suit and shortly before the hearing. He contends that the alleged counterclaim is unsupported by evidence and is inconsistent with the Applicant’s previous position that the outstanding indebtedness stood at Kshs. 4,864,832/=. He further argues that the application is merely intended to delay the hearing of the suit. 16. **InHangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd (2012) eKLR,** Odunga, J (as he then was) persuasively held that: **“In my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether, under all the circumstances, it is proper to order a transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case.”** 1. The Court must consider whether the orders sought would serve the interests of justice. The Plaintiff’s claim and the intended counterclaim arise from the same hire purchase transactions, and the proposed counterclaim, being like a cross-suit, is intended to enable all disputes between the parties to be determined in one proceeding and thereby avoid multiplicity of suits. 2. If the Applicant’s claim of Kshs. 181,704,720/= is established, it would exceed the pecuniary jurisdiction of the Chief Magistrate’s Court. At this stage, the Court is not concerned with the merits of the intended counterclaim but only whether it is arguable and connected to the subject matter of the suit. 3. I am satisfied that it is neither frivolous nor unrelated to the dispute. Requiring separate proceedings would result in duplication, increased costs, and the risk of conflicting decisions, contrary to the overriding objective of the Civil Procedure Act. 4. While the delay is substantial, the Plaintiff has not demonstrated any prejudice incapable of compensation by costs. In contrast, refusal of leave could preclude a substantial claim from being heard on the merits. 5. In the circumstances, the interests of justice I find merit in the Notice of Motion dated 25th July 2025. I make the following orders: 6. ***The suit, to wit of Milimani CMCC No. 1111 of 2020 Bhai Omar Al Amin vs ASL Credit Limited, shall be transferred from the Milimani Chief Magistrate’s court to the High Court Commercial & Tax Division for hearing and determination.*** 7. ***The Defendant/Applicant is granted leave to file and serve its Statement of Defence, Counterclaim, witness statements, list of witnesses, and bundle of documents within fourteen (14) days from the date of this ruling.*** 8. ***The Plaintiff/Respondent shall be at liberty to file and serve a Reply to Defence, Defence to Counterclaim, and any accompanying documents within fourteen (14) days of service*.** 9. ***Costs shall be in the cause.*** It is so ordered. **RULING** delivered virtually, dated and signed at **NAIROBI** This **11th** day of **June** 2026. **P.M. MULWA** **JUDGE** **In the presence of:** *Ms. Jane Okoth* for Applicant *Mr. Mirie* for Respondent Court Assistant*: Lispa*