https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/516

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **CIVIL CASE NO. E054 OF 2024** **MAGDALINE WAKWE RIOBA….………………………………..PLAINTIFF** **VERSUS** **SUKARI INDUSTRIES LTD……………………………………DEFENDANT** **RULING** 1. Counsel for the defendant made an oral application under the Sugar Act section 47 that this court transfers this case to the Sugar Arbitration Tribunal. The application was opposed by the plaintiff’s counsel and relied on Section 17 and 18 of the Civil Procedure Act. He submitted that the power to transfer the matter lies with the High Court and not this Court. The defendant can approach the appropriate forum for transfer. **Determination** 1. The issue for determination is whether this court has jurisdiction to transfer this case to the Sugar Arbitration Disputes Tribunal. 2. Section 18 of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3) provides:- **“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-** 1. **Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or** 2. **Withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter-** 3. **Try or dispose of the same; or** 4. **Transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or** 5. **Retransfer the same for trial or disposal to the court from which it was withdrawn.** **Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn”** 1. Section 18 of the [Act](https://new.kenyalaw.org/akn/ke/act/1924/3) empowers the High Court to withdraw and transfer a case instituted in a subordinate court on application of any of the parties or on its own motion. For the court to grant an order of transfer the applicant must satisfy the court as to the reasons for such orders. 2. This principle was enunciated in [**Julius Lekuruito & Another vs Nottingham Mwangi & Another**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/662)**(2018) eKLR** where the court held:- “***Under Section 17 and 18 of the***[***Act***](https://new.kenyalaw.org/akn/ke/act/1924/3)***, upon an application by a party, or on its own motion, the High Court may transfer the suit to another subordinate court with territorial jurisdiction, when justice of the case demands such action.”*** 1. It can be distilled from the foregoing provisions that whereas section 17 of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3) caters for transfer of cases in instances were one suit is capable of being instituted in two or more courts, section 18 of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3) provides for the general power of the High Court to withdraw and transfer a case from one court to another irrespective of whether such suit may be instituted in more than one court or even the High Court can transfer such suit to itself and to try and dispose the same. 2. In the case of [**Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited & 2 others**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2012/8)**[2012] eKLR,** Application No. 2 of 2011, the Supreme Court held as follows: ***“[68]. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. It is therefore trite law that the limits of the Court in exercising a particular jurisdiction must be ascertained before the Court can proceed with the matter any further. It is clear from the above provision that the High Court has wide and unfettered discretion in deciding whether or not to transfer a suit from one subordinate court to another and it can do so whether on application by one of the parties or sui moto. The subordinate court does not have such powers. 2. I find that this court lacks jurisdiction to transfer this matter from this court to the tribunal and dismiss the same for want of jurisdiction. This is a preserve of the High Court. **Dated, Signed and Delivered in open Court at Kehancha on this 14 day of August, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Mangera/Enock…….Court Assistant** **Plaintiff……….Present** **Defendant……..Absent** **Advocate for plaintiff……….Achola present** **Advocate for defendant……..Ogola present**