https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11498

Njega v Muriithi & another (Family Cause E003 of 2025) [2026] KEHC 11498 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11498 (KLR) Republic of Kenya In the High Court at Nyeri Family Cause E003 of 2025 MA Odero, J July 23, 2026 Between Isaac Mureithi Njega Applicant and Peter Gichuru Muriithi 1st Respondent Houston Muchiri Weru 2nd Respondent Ruling 1.Before Court is the Notice of Motion dated 16th January 2025 by which the Administrator/Applicant ISAAC MUREITHI NJEGA seeks the following orders;-“ 1.SPENT 2.THAT an order do issue transferring Nyeri Chief Magistrate Court Succession No. 346 of 2016 in the matter of the Estate of Leah Nyawira Njega, Peter Gichuru Muriithi -vs- Isaac Mureithi Njega to the High Court of Nyeri for hearing of the Succession cause that is pending confirmation of the Grant. 3.THAT costs be provided for.” 2.The application which was premised upon Section 18 of the Civil Procedure Act, Cap 21, Laws of Kenya was supported by the affidavit of even date sworn by the Applicant. 3.The Respondents Peter Gichuru Muriithi And Houston Muchiri Weru filed Grounds of opposition dated 31st January 2025 as well as a Replying Affidavit dated 3rd March 2025 opposing the application. 4.The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 5th November 2025, whilst the 1st Respondent relied upon their written submissions dated 30th October 2025 and 5th August 2025 respectively. 5.This matter relates to the estate of the late Leah Nyawira Njega. Following the demise of the Deceased the 1st Respondent Peter Gichuru Muriithi filed Succession Cause No. in the Nyeri Chief Magistrates Court and was issued with Grant of representation to the estate. That grant was later confirmed on 7th February 2018. 6.Thereafter on 22nd February 2018 a summons for revocation of Grant was filed by the Applicant Isaac Mureithi Njega. That summons was heard and vide a ruling delivered on 22nd November 2023, Hon. F. Muguongo, Senior Resident Magistrate revoked the grant which had been issued to the 1st Respondent and directed that a fresh grant issue to the current administrator Isaac Mureithi Njega. The Administrator the Applicant herein then filed a summons for confirmation of Grant dated 25th August 2023. The 1st and 2nd Respondents both filed protests against the summons for confirmation of Grant. 7.The protests were heard in the Lower Court and vide a ruling delivered on 18th December 2024, Hon. Anastacia Ndung’u found that the court lacked requisite jurisdiction to adjudicate over the estate in question as the value of the estate exceeded the pecuniary jurisdiction of the Magistrates Court. 8.The Applicant has now filed this application seeking to have the suit transferred to the High court in Nyeri for hearing. 9.In opposing the application for transfer of the suit the Respondents submit that a suit filed in a court without proper jurisdiction is incompetent, is a nullity and is incapable of being transferred to another court. Analysis And Determination 10.I have carefully considered this application, the reply filed thereto as well as the written submissions filed by both parties. 11.The High Court under Article 165(6) and (7) of the Constitution of Kenya 2010 has the power to direct transfer of suits in the various magistrates courts. Likewise Section 17 of the Civil Procedure Act Cap 21 Laws of Kenya provides as follows:-“Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.” 12.Section 18 of the same Act provides for the withdrawal and/or transfer of suits from the Magistrates court to the High Court. Section 18 provides that 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 notice, the High Court may at any stage -a.Transfer any suit, appeal or other proceedings pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; orb.Withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter –(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or despise of the same; or(ii)retransfer the same for trial or disposal to thr court from which it was withdrawn.c.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 pecuniary jurisdiction of Magistrates Courts is set out by Section 7(1) of the Magistrates Courts Act Cap 10 Laws of Kenya as follows“7(1)A Magistrate’s Court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed – (a) twenty million shillings, where the Court is presided over by a chief magistrate; (b) fifteen million shillings, where the Court is presided over by a senior principal magistrate; (c) ten million shillings, where the Court is presided over by a principal magistrate; (d) seven million shillings, where the Court is presided over by a senior resident magistrate; or (e) five million shillings, where the Court is presided over by a Resident Magistrate. 14.The question which readily arises is whether a suit which has been instituted in a court lacking jurisdiction to try the same can be transferred under the terms of Section 18(1) (a). 15.It is trite law that where a court finds it has no jurisdiction to handle a matter then that court must immediately down its tools [see Owners of Motor Vessel “Lilian S” -VS- Caltex Oil (Kenya) Ltd 1989 eKRL] 16.Can a suit filed in a court which so lacks jurisdiction be transferred to another Court? I think not. Such a suit would in my view be incompetent and therefore a nullity. 17.In Equity bank Limited vs Bruce Mutie Mutuku T/A Diani Tour & Travel (2016) eKLR the Court of Appeal observed as follows:“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer. In Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR, it was held as follows:- “It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognized by law.” [Own emphasis] 18.In Honey Creepers Investment Limited vs Cab Investment Company Ltd & 4 others [2020] eKLR, the Court of Appeal stated thus:-“ 42.At this juncture, I should, as I normally do direct that the matter be transferred to the E & LC for hearing and determination. I normally put reliance on Daniel N. Mugendi (supra). The 2nd Respondent has, however, submitted that based on the decision of the Court of Appeal in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, a court without jurisdiction has no power to transfer a case to a court with jurisdiction…..” 19.Similarly in Sam Kinyua vs Yusuf Mbuno & 4 others; Tolbert Manyage (Interested party) (2022) eKLR the court echoed this position as follows:“….On issue of the transfer the 3rd and 4th respondents places reliance in the case of Honey Creepers Investment Limited case, (supra) where the learned Judge also made a substantive finding that the Court, as a consequence, lacked the requisite jurisdiction to transfer the incompetent Petition to the Court with the requisite jurisdiction…….. Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the Court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied….[emphasis my own] 20.Based on the foregoing I find that the trial court having had no jurisdiction over the suit the same cannot now be transferred to a court having requisite pecuniary jurisdiction. The way to resolve this anomaly is to withdraw the suit filed in the Lower Court and file a compliant suit in the correct court. 21.Therefore the application dated 16th January 2025 is dismissed in its entirety. Costs will be met by the Applicant. DATED IN NYERI THIS 23RD DAY OF JULY 2026……………………..MAUREEN A. ODEROJUDGE