Nyamunga v Kenya Power & Lighting Company Limited (Civil Application Sup E009 of 2025) [2026] KEHC 7951 (KLR) (29 May 2026) (Ruling)

Nyamunga v Kenya Power & Lighting Company Limited (Civil Application Sup E009 of 2025) [2026] KEHC 7951 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7951 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Application Sup E009 of 2025 OA Sewe, J May 29, 2026 Between Maurice Augustine Obunga Nyamunga Applicant and Kenya Power & Lighting Company Limited Respondent Ruling 1.The Notice of Motion dated 10th February 2025 was filed by Maurice Augustine Obunga Nyamunga, the applicant herein, pursuant to Sections 3A and 18 of the Civil Procedure Act, Cap 21 of the Laws of Kenya, as well as Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Rule 8(2) of the High Court (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. He thereby prayed for the following orders:(a)Spent(b)That the Court be pleased to order for the transfer of Homa Bay Chief Magistrates Court Civil Suit No. E032 OF 2025, from the Chief Magistrate' s Court at Homa Bay to Homa Bay High Court where the matter can be heard and determined.(c)The costs of the application be in the cause. 2.The application was supported by the annexed affidavit of Mr. Obach Humphrey, Advocate, in which he deposed that the applicant herein filed a suit at the Homa Bay Chief Magistrate’s Court on the 5th February 2025, being Homa Bay Chief Magistrates Court Civil Suit No. E032 of 2025 claiming Kshs. 21,549,932.20; which sum exceeds the pecuniary jurisdiction of the Magistrate' s Court hence rendering the Homa bay Chief Magistrate Court incompetent in terms of jurisdiction. He further averred that the suit was erroneously filed at Homa Bay Chief Magistrate' s court as opposed to the High Court as was intended. Counsel further averred that no prejudice will be occasioned to the respondent by the orders sought. 3.The respondent was opposed to the application and in response thereto, it filed Grounds of Opposition dated 23rd February 2025 contending that the suit sought to be transferred, namely, Homa Bay CMCC No. E032 of 2025, was filed in a court which was devoid of jurisdiction to hear and determine the same in the first place, and therefore this Court lacks jurisdiction to transfer it to itself for hearing and determination as proposed by the applicant. Consequently, the applicant prayed that the application be dismissed with costs. 4.The application was canvassed by way of written submissions, as directed by the Court on 24th February 2025. In his submissions dated 17th March 2025, the applicant proposed a single issue for determination, namely, whether the lower court suit should be transferred to the High Court as prayed. The applicant submitted that the High Court has the discretion to transfer a file from the subordinate court to the High Court and try the same by virtue of Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules, and Section 18 (b) (i) of the Civil Procedure Act. 5.The applicant further submitted that the power is a discretionary one and therefore the Court must be guided by Sections IA, 3A and 1B with a view of achieving the overriding objectives of the Court. Reliance was also placed on Article 159 of the Constitution which mandates the Court to administer substantive justice and not pay undue regard to procedural technicalities. The applicant also relied on Aberdare Investments v Bernard Wachira & 5 Others [2014] eKLR and Wycliffe Hwangaza Kihugva v Grainbulk Handlers Limited [2014] eKLR in urging the Court to allow the application. 6.The respondent on his part, relied on its written submissions dated 18th March 2025. It maintained the stance that a suit filed in a court without jurisdiction is a nullity and therefore incapable of being transferred to a court with jurisdiction. The respondent relied on two decisions of the Court of Appeal in this regard, namely, Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR)and Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019]KECA767(KLR)and urged for the dismissal of the instant application with costs. 7.There is no doubt that the Court has jurisdiction to transfer a suit from the subordinate court to itself for hearing and determination. Section 18(1) of the Civil Procedure Act is explicit in this regard. It provides that:(1)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—(a)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(b)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 dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn. 8.Needless to mention that the above provision presupposes that the suit sought to be transferred was filed in a court competent to try it in the first instance. This much can be inferred from the context; for, Section 17 recognizes that a suit may be instituted in any one of two or more subordinate courts. It provides that where that is the case:“…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.” 9.It is now trite that a suit filed in a court without jurisdiction is null and void, and therefore incapable of being transferred under Section 18 of the Civil Procedure Rules. In urging the application, counsel for the applicant placed reliance on the decision of the High Court (Hon. Kasango, J. and Hon. Waweru J.) rendered in 2011 and 2014, respectively. However, the Court of Appeal and the Supreme Court have since expressed themselves on the matter. For instance in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR) the Court of Appeal held:“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 an 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.” 10.Similarly in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA767(KLR) the Court of Appeal held:“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.20.It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. Civil Appeal No. 6 of 2018 Phoenix East Africa Assurance Co.LTD v. S.M. Thiga t/a Newspaper Services is therefore a nullity as it was based on a nullity.” 11.The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:(154)However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.” 12.Accordingly, the submission by counsel for the applicant that there has been a departure from the Kagenyi Case cannot be correct. 13.In the result, and in the light of the foregoing, the application dated 10th February 2025 is devoid of merit and is hereby dismissed with costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026…………………………………HON. OLGA SEWEJUDGE