https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13101

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E292 OF 2024** **DK RONO, J** **23 JULY 2026** **BETWEEN** **JOYCE KAWIRA *alias* FRIDAH KATHAMBI *(Suing as the legal representative of the Estate of LAWRENCE MUTUMA MWIRIGI-Deceased)*............................APPELLANT** **AND** **EQUITY BANK (KENYA) LIMITED.............................................1ST RESPONDENT** **MARTHA WANJIRU MWAI...............................................................2ND RESPONDENT** **PAUL WANJEMA.................................................................................3RD RESPONDENT** *(An appeal from the Ruling and Order of the Chief Magistrate’s Court at Meru delivered on 30th September 2024 by Hon. J.M. Njoroge, C.M. in Civil Case No. E250 of 2023)* **JUDGMENT** 1. This appeal is a challenge to the decision of the trial court delivered on 30th September 2024, which summarily terminated the Appellant’s suit for an alleged lack of territorial jurisdiction. 2. The underlying claim involves a tragic road traffic accident which occurred on 9th September 2023 along the Nairobi-Mai Mahiu Road, resulting in the death of Lawrence Mutuma Mwirigi. The Appellant, as the administrator of the deceased’s estate, sought damages for the loss of her husband and the breadwinner for her two minor children. 3. The suit was initially filed in Meru, where the 1st Respondent, Equity Bank (Kenya) Limited, maintains a substantial business presence. However, following a consent order on 14th February 2024, the 1st Respondent being merely a financier was struck out of the proceedings. This departure prompted the 2nd and 3rd Respondents to successfully argue that the Meru court was denuded of jurisdiction, as the accident occurred in Kiambu and the remaining parties resided in Nakuru. 4. The trial court, persuaded by the Respondents' arguments that a suit filed in the "wrong" venue is a nullity, dismissed the claim in its entirety. The Appellant now moves this Court to set aside that dismissal, arguing that the trial court's universal jurisdiction and this Court's supervisory powers ought to have been invoked to transfer, rather than terminate, the suit. 5. Having perused the record and the submissions of counsel, the primary issues that fall for determination are: 1. Whether the filing of the suit in Meru constituted a jurisdictional nullity or a procedural irregularity of venue. 2. Whether the High Court possesses the power to transfer a suit from a station of incompetent geographical jurisdiction to one of competent jurisdiction. 6. This being a first appeal, this Court is obligated to re-evaluate and re-analyse the material that was placed before the trial court and arrive at its own independent conclusions. The role of a first appellate court has long been settled. 7. In the case of *Selle v Associated Motor Boat Co. Ltd,* the Court of Appeal for East Africa stated: “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 1. Similarly, in *Peters v Sunday Post Ltd***,** Sir Kenneth O’Connor, P. observed: “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is one which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 1. Although the present appeal arises from a ruling rather than a full trial, the foregoing principles apply with equal force. The duty of this Court is therefore to undertake an independent examination of the pleadings, the application, the impugned ruling, and the applicable law in order to determine whether the learned trial magistrate properly directed himself on the question of jurisdiction and whether the order dismissing the suit was justified in the circumstances. 2. The Court is also mindful that an appellate court will ordinarily be slow to interfere with the exercise of judicial discretion. However, interference is warranted where it is demonstrated that the trial court misdirected itself on the law, took into account irrelevant considerations, failed to take into account relevant considerations, or arrived at a decision that is plainly wrong. 3. In this regard, the principles enunciated in *Mbogo & Another v Shah* remain applicable, where the Court held that an appellate court may interfere where the lower court has misdirected itself and as a result arrived at a wrong decision. Guided by the foregoing principles, this Court shall proceed to consider whether the learned trial magistrate erred in holding that the Meru Chief Magistrate's Court lacked jurisdiction to entertain the suit and whether the dismissal of the Appellant's claim, as opposed to its transfer to a court of competent territorial venue, was legally and judicially soundTop of FormBottom of Form **ANALYSIS AND DETERMINATION** i. **Whether the filing of the suit in Meru constituted a jurisdictional nullity or a procedural irregularity of venue**. 1. The central issue in this appeal is whether the institution of the suit before the Chief Magistrate's Court at Meru, notwithstanding that the accident occurred along the Nairobi–Mai Mahiu Road and the remaining defendants resided outside Meru County, deprived that court of jurisdiction and rendered the entire suit a nullity. The trial court answered that question in the affirmative and consequently struck out the suit 2. The starting point is the celebrated decision in *Owners of the Motor Vessel 'Lillian**S' v**Caltex Oil (Kenya) Ltd*where Nyarangi JA famously stated: "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." 1. That principle remains good law. However, what constitutes "jurisdiction" for purposes of the *Lillian S* principle must always be carefully identified. The decision concerned the substantive power of a court to entertain a dispute. It did not concern a mere question of the geographical station at which proceedings ought to have been commenced 2. The distinction between jurisdiction and venue was considered in *Mohamed Shaban v George K. N. Karoki, Bungoma High Court Miscellaneous Application No. 13 of 2003*, where the Court observed that the provisions of Section 15 of the Civil Procedure Act *regulate the place where a suit should be instituted but does not deprive a court of the judicial power to determine the dispute*. 3. **Section 3(2) of the Magistrates Courts Act** (enacted after the Civil Procedure Act) explicitly states that the **"Resident Magistrate’s Court shall have jurisdiction throughout Kenya"**. The import of this provision is that a duly constituted magistrate's court exercises national territorial jurisdiction. Consequently, once the subject matter of the dispute falls within the pecuniary and statutory jurisdiction of the court, the question of the particular station at which the matter is filed *becomes one of convenience and venue rather than jurisdiction in the strict legal sense*. 4. This court is of the view that the above statutory provision grants a Resident Magistrate including the Chief Magistrate at Meru universal jurisdiction over the subject matter of tortious claims throughout the Republic, territorial restrictions under **Section 15 of the Civil Procedure Act** control the convenience of filing but do not render a suit a nullity if filed in a different station. 5. In the present case, there is no dispute that the claim arose from a road traffic accident and was a claim well within the civil jurisdiction of the Chief Magistrate's Court. The Meru Chief Magistrate's Court therefore possessed jurisdiction over the subject matter of the dispute. What was in issue was merely whether Meru was the most appropriate station for the hearing of the suit. 6. I therefore find and hold that the learned trial magistrate conflated territorial venue under Section 15 of the Civil Procedure Act with jurisdiction in the sense contemplated in Lillian S. The consequence was an erroneous finding that the suit was void ab initio. 7. The trial court's finding that it was completely "without jurisdiction" was an error of law. The court possessed inherent subject-matter jurisdiction the issue was merely one of geographical propriety. Filing in Meru was a procedural irregularity of venue, not a fundamental defect that rendered the proceedings *void ab initio*. **ii. Whether the High Court possesses the power to transfer a suit from a station of incompetent geographical jurisdiction to one of competent jurisdiction.** 1. The Respondents rely on *Adero & Another v Ulinzi Sacco Society Limited* to argue that a court lacking jurisdiction cannot transfer a “nullity.” However, that decision is distinguishable as it applies to cases of total absence of subject-matter jurisdiction. In contrast, where a court has subject-matter jurisdiction but the matter is filed in the wrong venue, the suit is not a nullity and remains amenable to transfer. 2. The power of the High Court to transfer suits exists to cure defects of venue and promote the efficient administration of justice. As held in Belinda Murai & 6 Others v Amos Wainaina, the court will not shut its doors merely because of counsel’s error and will take appropriate steps to ensure that substantive justice is achieved where no prejudice is occasioned. 3. This jurisdiction is anchored in Sections 17 and 18 of the Civil Procedure Act. Section 17 empowers the Court, upon application by a defendant or on its own motion, to determine the most appropriate subordinate court where a suit instituted in one of several competent courts should proceed, while Section 18 vests the High Court with broad discretionary power to withdraw and transfer suits between subordinate courts. 4. The combined effect of these provisions, as affirmed in Rapid Kate Services Ltd v Freight Forwarders Kenya Ltd & 2 Others, is that the High Court may transfer proceedings to the most appropriate forum, whether on application or suo motu, as a corrective measure to ensure that litigation is heard in the proper and convenient court. 5. However, this power presupposes that the court seized of the matter is competent, since a suit filed in a court lacking jurisdiction is a nullity and cannot be salvaged by transfer. Where the issue relates only to venue rather than jurisdiction, transfer remains the appropriate and lawful remedy. 6. In the present appeal, the Appellant’s claim arises from a fatal accident resulting in death, and its dismissal terminated the suit without adjudication on the merits, thereby exposing the claim to limitation risks and denying substantive justice. 7. No prejudice was demonstrated by the Respondents that would have resulted from transfer to a proper venue. They would have retained all available defences and the full opportunity to be heard, whether the matter proceeded in Meru or another appropriate station such as Naivasha. 8. Upon review of the record and applicable law, I find that the trial court conflated venue with jurisdiction. While Section 15 of the Civil Procedure Act regulates place of filing, Section 3(2) of the Magistrates’ Courts Act vests magistrates’ courts with nationwide jurisdiction. The Meru Chief Magistrate’s Court therefore had jurisdiction over the subject matter, with only the issue of territorial propriety in question. 9. The filing of the suit in Meru did not render it a nullity. At most, it was a curable irregularity of venue, remediable through transfer under Section 18 of the Civil Procedure Act. The finding that the suit was incompetent was therefore erroneous. 10. Dismissal was further unjustified as the procedural defect caused no prejudice to the Respondents and deprived the Appellant of a hearing on the merits. 11. Accordingly, I am satisfied that the interests of justice required transfer of the suit to the appropriate venue rather than its dismissal. The appeal therefore merits intervention by this Court. 12. The Appropriate orders that commend in the circumstances are; 1. The appeal is hereby allowed. 2. The Ruling and Order of the Chief Magistrate’s Court at Meru dated 30th September 2024, dismissing the suit, is hereby set aside. 3. The suit, Meru CMCC Case No. E250 of 2023, is hereby reinstated. 4. Pursuant to the powers of this Court under Section 18 of the Civil Procedure Act, the suit is hereby transferred to the Chief Magistrate’s Court at Naivasha for hearing and determination, being the court within whose local limits the cause of action arose. 5. Each party shall bear their own costs of this appeal. **DATED, SIGNED, AND DELIVERED AT MERU THIS 23RD DAY OF JULY 2026.** **DK RONO** **JUDGE**