https://new.kenyalaw.org/akn/ke/judgment/scc/2026/134

Kanyango v Chebor (Commercial Case E444 of 2026) [2026] SCC 134 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] SCC 134 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E444 of 2026 TN Mwangeka, RM July 2, 2026 Between Margaret Wairimu Kanyango Claimant and Larry Chebor Respondent Ruling 1.This ruling relates to a Preliminary Objection filed by the Respondent dated 11th June 2026 challenging the jurisdiction of this court to hear the Claim for want of territorial jurisdiction. 2.The Respondent submits that the Respondent neither resides, works for gain, nor carrying on business within the local limits of the jurisdiction of this Honourable Court thus the claim is filed in contravention of section 15(1) of the Small Claims Court Act (Cap. 10A), as none of the jurisdictional anchors prescribed under paragraphs (a) to (e) thereof have been met. 3.On the part of the Claimant, the Claimant submits that striking out the suit would amount to an unnecessarily drastic remedy where there exists an identifiable and competent court capable of adjudicating upon the dispute. An order for transfer would sufficiently address the Respondent's concerns while preserving the parties' right to have the dispute determined on its merits. Analysis and Determination 4.The Supreme Court in the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR endorsed the principles set out in the Mukisa Biscuit case regarding preliminary objection defining them as those that consist of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 5.The instant Preliminary Objection as filed fits within the definition in the Mukisa Biscuits case as what is contended is the jurisdiction of the court to determine the suit. I will thus proceed to determine the same, considering the pleadings and submissions as filed by the Claimant herein. 6.I have considered the record herein and indeed the only issue for determination is whether this court has the jurisdiction to entertain the suit. It is trite law that jurisdiction is the foundation upon which any judicial authority rests. This principle has been firmly established in a long line of authorities, most notably in the celebrated decision of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, which stands as the locus classicus on the question of jurisdiction. 7.Section 11 of the Small Claims Court Act provides that the Chief Justice shall, by notice in the Gazette, designate the local limits of the jurisdiction of the Small Claims Court. 8.By dint of Gazette Notice No. 3791 of 2021, the Acting Chief Justice established the Small Claims Court at Milimani Commercial Courts to exercise jurisdiction within Nairobi County only, with effect from 27th April 2021. Similarly, this Court was established to exercise jurisdiction within Mombasa County only. 9.Section 15 of the Small Claims Court Act provides that a party may lodge a claim in a court within whose local limits:a.the person ordinarily resides or carries on business;b.the subject matter of the claim is situated;c.the contract was made or was to be performed;d.the cause of action arose; ore.the Respondent resides. 10.The documents produced by the Claimant do not demonstrate that the transactions were undertaken within Mombasa County. They show that both parties reside in Nairobi County. Consequently, this Court finds that the claim herein does not fall within this court’s territorial jurisdiction as none of the jurisdictional anchors prescribed under section 15 (a) to (e) thereof have been met. 11.However, as rightly submitted by the Claimant and in line with Rule 34 (2) as read with Article 48 of the Constitution which guarantees every person access to justice as well as Article 159(2)(d) which enjoins courts to administer justice without undue regard to procedural technicalities, in the interests of substantive justice the matter is hereby transferred to the Small Claims Court Milimani. The in-charge Small Claims Court Mombasa to cause the matter to be placed before an Adjudicator for purposes of having the matter mentioned for further directions in the matter. 12.Orders accordingly. There shall be no costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……2ND …. DAYOF………JULY………2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;…Ms. Wanjiru h/b for Ms. Kimani…for Claimant;…Ms. Kemboi… for RespondentC/A Esther