https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/814

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E1746 OF 2025** **GLAJOES ENTERPRISES LIMITED ...................................... PLAINTIFF/RESPONDENT** **VERSUS** **EQUITY BANK KENYA LIMITED .......................................DEFENDANT/APPLICANT** **RULING** **Background** 1. Before the Court is the Defendant/Applicant’s Preliminary Objection dated 19th May 2026, together with the application dated 20th May 2026, substantially challenging the jurisdiction of this Court to entertain the matter and, in particular, the validity of the orders issued on 30th April 2026. 2. The dispute relates to six motor vehicles, namely KTCB 248X, KTCB 249X, KTCB 250X, KTCB 879X, KTCB 276R and KTCB 615T. 3. From the material placed before the Court, the Plaintiff/Respondent had filed an application under certificate dated 17th November 2025, seeking, inter alia, orders restraining the Defendant, its agents, employees and/or officers from repossessing, interfering with, alienating, disposing of or otherwise dealing with the six motor vehicles pending the hearing and determination of the application and ultimately the suit. The Plaintiff further sought the unconditional release of the said motor vehicles. 4. The Defendant opposed that application through a Replying Affidavit dated 3rd December 2025, maintaining that the application was devoid of merit and that the Plaintiff had not demonstrated a sufficient basis for the orders sought. 5. On 30th April 2026, this Court issued orders restraining the Defendant from repossessing, selling, disposing of or otherwise dealing with the aforesaid motor vehicles. It is principally those orders that triggered the present jurisdictional objection. The Preliminary Objection 1. The Defendant contends that the value of the subject matter is approximately KShs. 18,000,000/= and that this Court, as then constituted, lacked the requisite pecuniary jurisdiction to entertain the matter and to issue the orders of 30th April 2026. 2. The Defendant consequently seeks, among other orders, that the Preliminary Objection be upheld; that the orders issued on 30th April 2026 be withdrawn and expunged from the record; that the matter be dealt with before a judicial officer having the requisite pecuniary jurisdiction; and that the Defendant be awarded costs. 3. The Defendant relies upon section 7(1) of the Magistrates’ Courts Act, No. 26 of 2015, as well as the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others and Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Service. Issues for Determination 1. Having considered the Preliminary Objection, the submissions and authorities relied upon, the issues which arise for determination are: 2. Whether the question of pecuniary jurisdiction is properly before the Court; 3. Whether this Court, as constituted when the orders of 30th April 2026 were made, possessed the requisite pecuniary jurisdiction; 4. What becomes of the orders issued on 30th April 2026 if jurisdiction was absent; 5. Whether the suit itself is a nullity or may proceed before a judicial officer of competent pecuniary jurisdiction; and 6. Who should bear the costs of the Preliminary Objection. Whether the Preliminary Objection is Properly Taken 1. A preliminary objection is ordinarily founded upon a pure point of law which, if successful, may dispose of the matter or a substantial part thereof without the need to receive evidence. The established principle flowing from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd is that such an objection proceeds on the assumption that the relevant facts upon which it is founded are not in dispute. 2. Jurisdiction is, however, sui generis. A court is under a continuing obligation to satisfy itself that it possesses jurisdiction over the matter before it. A question of jurisdiction may therefore be raised at any stage, and even where parties do not raise it, the Court cannot proceed once it becomes apparent that it lacks jurisdiction. 3. The Defendant states that the subject matter is valued at KShs. 18,000,000/=. That figure appears both in the Preliminary Objection and the Defendant’s submissions. On the material presently before the Court, no material has been placed before me controverting that value. I therefore proceed on the basis of the stated value of KShs. 18,000,000/= for purposes of determining the objection. Pecuniary Jurisdiction 1. Section 7(1) of the Magistrates’ Courts Act provides differentiated pecuniary limits depending upon the rank of the judicial officer presiding over the court. 2. The statutory limits are presently: Chief Magistrate – KShs. 20,000,000/=; Senior Principal Magistrate – KShs. 15,000,000/=; Principal Magistrate – KShs. 10,000,000/=; Senior Resident Magistrate – KShs. 7,000,000/=; Resident Magistrate – KShs. 5,000,000/=. 1. The statutory framework therefore makes pecuniary jurisdiction dependent not merely upon the designation of the court station but upon the rank of the judicial officer presiding over the particular matter. 2. At the material time, this Court was presided over by a Senior Resident Magistrate. The applicable pecuniary limit was consequently KShs. 7,000,000/=. 3. Against that statutory limit, a subject matter valued at KShs. 18,000,000/= was plainly outside the pecuniary jurisdiction of this Court as then constituted. 4. I therefore agree with the Defendant to the extent that once the value of the subject matter was KShs. 18,000,000/=, this Court, presided over by a Senior Resident Magistrate, did not possess jurisdiction to substantively entertain the dispute or issue interlocutory orders therein. The Nature and Consequences of Jurisdiction 1. The law on jurisdiction is settled. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, the Court of Appeal emphasised that jurisdiction is foundational to the exercise of judicial power and that once a court holds that it lacks jurisdiction, it cannot properly continue to adjudicate the matter. 2. Similarly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others, the Supreme Court stated, in substance, that a court derives its jurisdiction from the Constitution or legislation and cannot arrogate to itself jurisdiction exceeding that which the law confers upon it. 3. Jurisdiction is therefore not a procedural technicality capable of being cured by Article 159(2)(d) of the Constitution. It goes to the legal authority of the Court itself. 4. It follows that where the value of the subject matter exceeds the pecuniary jurisdiction conferred upon the judicial officer by section 7 of the Magistrates’ Courts Act, the judicial officer cannot confer jurisdiction upon himself or herself by consent of the parties, acquiescence, convenience or otherwise. The Orders of 30th April 2026 1. The Defendant asks the Court to find that the orders issued on 30th April 2026 were made without jurisdiction and are therefore null and void. 2. Once it is found that this Court lacked pecuniary jurisdiction over a KShs. 18,000,000/= subject matter, it necessarily follows that the Court lacked legal authority to issue substantive interlocutory orders in respect thereof. 3. The fact that the orders may have been issued in good faith or upon material that appeared at the time to warrant preservation of the subject matter cannot cure the absence of jurisdiction. Judicial discretion can only be exercised within jurisdiction. 4. I consequently find that the orders issued by this Court on 30th April 2026 cannot stand and must be set aside. Whether the Entire Suit is a Nullity 1. The Defendant has placed considerable reliance upon the Court of Appeal decision in Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Service. The Court has considered that authority carefully. 2. In Phoenix, the original claim was instituted before a Principal Magistrate’s Court whose pecuniary limit was significantly below the monetary value of the claim. The suit was therefore instituted in a court which had no jurisdiction over it from inception. It was later purportedly transferred to the High Court. The Court of Appeal ultimately held that a suit instituted before a court devoid of jurisdiction was a nullity ab initio and could not subsequently acquire validity through transfer to a competent court. 3. The Court of Appeal reaffirmed that jurisdiction cannot be conferred retrospectively and that a suit which was a nullity at inception cannot be resurrected through transfer. 4. The factual situation before me requires an important distinction. The present suit is Civil Suit No. E1746 of 2025 in the Chief Magistrate’s Court at Mombasa. Section 7(1)(a) of the Magistrates’ Courts Act confers upon a court presided over by a Chief Magistrate jurisdiction in civil matters whose subject matter does not exceed KShs. 20,000,000/=. A claim valued at KShs. 18,000,000/= therefore falls within the statutory pecuniary jurisdiction of a Chief Magistrate. 5. The difficulty in the present proceedings is consequently not that the suit was instituted at a court station that could never entertain a KShs. 18,000,000/= claim. Rather, the difficulty is that the matter came before and substantive orders were issued by a judicial officer whose individual pecuniary jurisdiction was limited to KShs. 7,000,000/=. In my view, those two situations ought not to be conflated. 6. Phoenix concerned an action which was incompetent at inception because the originating court itself lacked jurisdiction over the claim. Here, the Chief Magistrate’s Court at Mombasa is legally capable of entertaining the suit provided the matter is presided over by a judicial officer whose statutory pecuniary jurisdiction extends to KShs. 18,000,000/=. 7. It would therefore go too far to hold that the entire suit is a nullity merely because it was subsequently allocated to a judicial officer who did not possess the necessary pecuniary jurisdiction. 8. What cannot survive are the substantive proceedings and orders undertaken by the Court while sitting without the requisite jurisdiction. 9. The appropriate course is therefore not to strike out the suit. Neither is it necessary, strictly speaking, to “transfer” the suit from the Chief Magistrate’s Court at Mombasa to the Chief Magistrate’s Court at Mombasa. Rather, the file should be placed before a Chief Magistrate at Mombasa for reallocation to a judicial officer possessing the requisite pecuniary jurisdiction. 10. This approach preserves the important distinction between jurisdiction attaching to the rank of the presiding magistrate under section 7(1) and the administrative allocation of matters within a duly established magistrates’ court station. Costs 1. The Defendant has succeeded on the central question of pecuniary jurisdiction and ordinarily costs would follow the event. However, costs remain a matter of judicial discretion. I have considered that the suit was filed in the Chief Magistrate’s Court at Mombasa, a court within which there are judicial officers legally capable of determining a claim valued at KShs. 18,000,000/=. There is no material before me demonstrating that the Plaintiff was responsible for the administrative allocation of the file to a judicial officer whose pecuniary jurisdiction was lower than the value of the subject matter. 2. In those circumstances, I do not consider it just to impose costs upon either party merely because the matter came before a judicial officer without the requisite pecuniary jurisdiction. 3. Each party shall therefore bear its own costs of the Preliminary Objection and the application arising from the jurisdictional question. Disposition 1. In the end, the Preliminary Objection dated 19th May 2026 succeeds to the extent of the challenge to the pecuniary jurisdiction of this Court as constituted, but not to the extent of rendering Civil Suit No. E1746 of 2025 itself a nullity. Accordingly, I make the following orders: 2. The Preliminary Objection dated 19th May 2026 is hereby upheld in part. 3. This Court, lacks pecuniary jurisdiction to hear and determine a suit whose subject matter is valued at KShs. 18,000,000/=. 4. The orders issued by this Court on 30th April 2026 are hereby set aside for want of pecuniary jurisdiction. 5. The prayer that the entire suit be struck out as a nullity is declined. 6. The suit shall be placed before the Hon. Njoroge for directions and reallocation to a judicial officer possessing the requisite pecuniary jurisdiction to hear and determine the matter. 7. For avoidance of doubt, nothing in this ruling determines the merits of the Plaintiff’s application dated 17th November 2025, or the substantive rights and obligations of the parties concerning motor vehicles KTCB 248X, KTCB 249X, KTCB 250X, KTCB 879X, KTCB 276R and KTCB 615T. Those questions shall be determined by the court of competent jurisdiction. 8. Each party shall bear its own costs of the Preliminary Objection and the jurisdictional application. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**