https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7231

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CIVIL MISC APP NO. E192 OF 2025** **MICHAEL NDIRANGU WAITHAKA…………………………………………APPLICANT** **VERSUS** **SBM BANK KENYA LIMITED…….………………………………..1ST RESPONDENT** **DUNCAN GITHUI KARANJA…………….……………..…………..2ND RESPONDENT** **AL HILAM AUCTIONEERS………………………………………….3RD RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/s Oyaro J. Associates & Co. Advocates** **M/s. KOMM Advocates** **M/s Kibet Allan & Co. Advocates** **RULING** 1. Before this Court is a notice of motion dated on 3rd day of February 2026 brought under Order 12 Rule 7, Order 51 Rule 3 of the Civil Procedure Rules, Sections 1A, 1Bb & 3A of the Civil Procedure Act, Article 50 and Article 159 of the constitution of Kenya, 2010 and all other enabling provisions of the law. The Applicant seeks the following orders: 2. *Spent.* 3. *That pending the inter partes hearing and determination of this Application, this Honorable Court be pleased to reinstate the Orders issued on 27th October, 2025, temporarily halting the proceedings in ELDORET CMCC E165 of 2022 pending the hearing of this Application inter-pates.* 4. *THAT the order made on 28th January 2026 dismissing Miscellaneous Civil Application No. E192 of 2025 for want of prosecution be set aside and this matter be reinstated for hearing and determination on the merits.* 5. *THAT costs of this Application be in the cause*. 6. The application is premised upon the following prime grounds: 7. *THAT this Honorable Court vide ruling delivered on 27th October, 2025 temporarily stayed/halted the proceedings in ELDORET CMCC E165 of 2022.* 8. *THAT in the said ruling the Court erroneously listed the matter for hearing on the remaining issue on 6th October,2025, which date preceded the date of the ruling.* 9. *THAT the Applicant later learnt that the matter had since been placed before the Honorable Court on 21st January, 2026 for a Notice to Show Cause but unfortunately the Court was not sitting, and a date was given by the Deputy Registrar for the 28th January,2026.* 10. *THAT on 28th January, Counsel representing the Appellant joined the Court through the virtual platform link https://www.shorturl.at/isAN7 but no proceedings were conducted on the said link, and upon inquiry with the Court Assistant he was informed that a new and/or different Microsoft Teams Link had been generated and used.* 11. *THAT Counsel then proceeded to open Court, where he was informed that the Court was on a site visit and he could therefore not call for the file to explain his predicament.* 12. *THAT by the time the new link came to counsel's attention, the Court had already risen.* 13. *THAT upon prompt follow-up with the Court Registry, counsel learnt that the matter had been dismissed for non-attendance.* 14. *THAT the non-attendance was neither deliberate nor contumelious but was occasioned by circumstances beyond counsel's control relating to virtual access and administrative challenges.* 15. *THAT the Applicant has moved this Honourable Court promptly and without inordinate delay.* 16. *THAT the Applicant will suffer grave prejudice if locked out unheard, whereas any prejudice to the Respondents is compensable by costs.* 17. *THAT Order 12 Rule 7 of the Civil Procedure Rules grants this Honourable Court wide discretion to set aside dismissal orders upon such terms as may be just.* 18. *THAT dismissals for want of prosecution are draconian in nature and should be applied sparingly and only in clear cases of inordinate delay or intentional disregard of Court process, which is not the case herein.* 19. *THAT the Applicant should not be condemned unheard due to an excusable mistake arising from technical and administrative challenges in a virtual Court environment.* 20. *THAT Article 159(2)(d) of the Constitution enjoins this Honourable Court to administer justice without undue regard to procedural technicalities.* 21. *THAT it is in the interests of justice that disputes be determined on their merits rather than terminated on account of inadvertent procedural lapses.* 22. In support of the application is the annexed affidavit of Oyaro Joseph who deponed as follows: 23. *THAT I am the Advocate on record for the Applicant herein.* 24. *THAT this Honorable Court vide ruling issued on 27th October, 2025 temporarily stayed/halted the proceedings in ELDORET CMCC E165 of 2022.* 25. *THAT in the said ruling the Court erroneously listed the matter for hearing for the remaining issue on 6th October, 2025, which date preceded the date of the ruling.* 26. *THAT we later learnt that the matter had since been placed before the Honorable Court on 21st January, 2026 for a Notice to Show Cause but unfortunately the Court was not sitting, and a date was given by the Deputy Registrar for the 28th January, 2026.* 27. *THAT on 28th January, I joined the Court through the virtual platform link https://www.shorturl.at/isAN7 but no proceedings were conducted on the said link, and upon inquiry with the Court Assistant I was informed that a new and/ or different Microsoft Teams Link had been generated and used.* 28. *THAT I then proceeded to open Court, where he was informed that the Court was on a site visit and he could therefore not call for the file to explain his predicament.* 29. *THAT by the time the new link came to my attention, the Court had already risen.* 30. *THAT upon prompt follow-up with the Court Registry, I learnt that the matter had been dismissed for non-attendance.* 31. *THAT the non-attendance was neither deliberate nor contumelious but was occasioned by circumstances beyond my control relating to virtual access and administrative challenges.* 32. *THAT the Applicant has moved this Honourable Court promptly and without inordinate delay* 33. *THAT the Applicant will suffer grave prejudice if locked out unheard.* 34. *THAT Order 12 Rule 7 of the Civil Procedure Rules grants this Honourable Court wide discretion to set aside dismissal orders upon such terms as may be just.* 35. *THAT dismissals for want of prosecution are draconian in nature and should be applied sparingly and only in clear cases of inordinate delay or intentional disregard of Court process, which is not the case herein.* 36. *THAT the Applicant should not be condemned unheard due to an excusable mistake arising from technical and administrative challenges in a virtual Court environment.* 37. *THAT Article 159(2)(d) of the Constitution enjoins this Honourable Court to administer justice without undue regard to procedural technicalities.* 38. *THAT it is in the interests of justice that disputes be determined on their merits rather than terminated on account of inadvertent procedural lapses.* 39. *THAT the Applicant has demonstrated diligence and stands ready to comply with any directions or timelines imposed by this Honourable Court.* 40. This application was canvassed by way of written submissions by both parties in which learned Counsel of the Applicant contended that there is need for intervention of this Court in order to safeguard the administration of justice and prevent the risk of conflict of judicial orders emanating from parallel proceedings touching on the same subject matter. The Applicant to this application has brought to the attention of the Court of the existence of claims affecting the same motor vehicle KCF 092J in Eldoret CMCC E615 of 2022 and other claims of similar nature in Nakuru SMCC Court No. E467 of 2024 and Kakamega CM Misc. App. No. E023 of 2024. Learned Counsel of the Applicant placed reliance on the following authorities: *Milly Logistics Ltd v Karanja [2024] KEHC 7073 KLR, Vegpro Kenya Ltd & Another v Wakungu alias Nanzala [2025] KEHC 335 (KLR), Chege & Another v Nyamu [2024] KEELC 1558 KLR, Wanyoike v Saina & 8 Others [2024] KEELC 3962 KLR, JMK v HWM [2024] KEHC 4440 KLR and Waro V Juba [2025] KEELC 1002 KLR and Julius Lekuruito & Another v Nottingham Mwangi & Another [2018] eKLR*. 41. In conclusion learned Counsel urged this Court to consider issuing stay of execution against multiple proceedings filed in the various Courts across the country to avoid multiple judicial decisions running the risk of prejudice or occasioning an injustice to the parties 42. The Respondents on the other hand opposed the grant of interim of orders of stay of execution seeking the leave of the Court to vacate stay of proceedings relying on the principles in the case of *Kenya Wildlife Service vs James Mutembei (2019) eKLR,* in light of the above, learned Counsel submitted that there is no sufficient cause to extend or maintain the stay orders. **Decision** 1. In Kenya the High Court exercises case transfer power under Section 18 of the CPA and Section 79 of the CPC. The guiding principles includes to prioritize disposal of cases, the general convenience of parties, the avoidance of prejudice and the ends of justice. In a nutshell these general principles in transfer of cases by High Court can be summarized as follows: * ***Convenience of Parties and Witnesses:****The Court assesses whether transferring a case to another jurisdiction reduces logistical burdens, travel times, and costs for witnesses and the accused.* * ***Failure of Impartial Trial:****A transfer is typically granted if there is a demonstrated apprehension that a fair and impartial trial cannot take place in the original jurisdiction.* * ***Pecuniary & Territorial Jurisdiction:****If a subordinate Court lacks the subject-matter or territorial jurisdiction to hear the case, it must direct the matter to the appropriate forum, or the High Court may transfer it* * ***Questions of Unusual Complexity:****Cases that involve complex or novel points of law may be transferred to a more suitable Court division.* * ***Ends of Justice:****The overriding interest of justice (often referred to as the "Oxygen Principles" in civil procedure) dictates that cases should be handled efficiently and cost-effectively* 1. The relevant cases include: * ***Republic v Kenya Matches Ltd:*** *The Court ordered the transfer of a case from Kericho to Kisumu, establishing that a transfer will be allowed if it is more convenient to both the accused and the witnesses]* * ***Samuel Kamau Macharia & Another v. Kenya Commercial Bank******([2012] eKLR):*** *The Supreme Court set the precedent that a Court's power to handle a case must flow explicitly from the Constitution or legislation. A Court lacking jurisdiction must halt proceedings and transfer the file.* * ***NNPC v. Alabi & Ors. ([2022] LPELR-59546(SC)):*** *Although this is a broader regional precedent, it provides that when a State High Court lacks jurisdiction, it should not simply strike out the case but rather transfer it to the appropriate judicial division or competent Court* * ***Dina Management Ltd v County Government of Mombasa & 5 others ([2023] UKSC/eKLR):*** *Emphasizes that jurisdictional questions are fundamental and Courts must immediately downward their tools if jurisdiction lies elsewhere, resulting in orders returning or transferring plaints to the correct jurisdictions.* 1. The Applicant in this case ought to establish where the cause of action arose between the three territorial jurisdictions and to point out to the High Court in Kakamega and Nakuru to exercise jurisdiction under Article 165(6((7) of the Constitution as read with Section 12, 15 & 18 of the CPA with regard to forum of *conveniens* of the three Courts named in the application. The doctrine of forum non *conveniens* is a common law principle where a Court with valid jurisdiction declines to hear a case if a more appropriate and less burdensome alternative forum exists. Courts balance private interests, witness availability, access to evidence and public interests, local community connections, and governing law to decide the most appropriate trial venue. What is required of the Applicant is to establish the natural forum test which means the most real and substantial forum in connection to the dispute and the parties. This application should have clearly answered which is the more appropriate forum to hear and determine this dispute in which the Plaintiffs/ Applicants and Defendants/Respondents would not suffer substantial injustice. Primarily it is required that the Plaintiffs/Applicants and the Respondents/Defendants tender evidence to prove which forum of the three mentioned Courts possess most appropriate personam and subject matter which enables it to try the case on its merit. This forum selection jurisdiction clause could have helped this Court to prevent confusion by clearly stating the best forum out of the three in which the trial should take place so that this matter can be put to rest. 2. As for this application on stay of proceedings at Eldoret CM’s Court so that this Court can move under Section 18 of the CPA to transfer case files currently ongoing at Kakamega and Nakuru Magistrates Courts is dismissed for want of merit. **DATED & DELIVERED AT ELDORET THIS 27TH DAY OF MAY 2026.** **………………………………..** **R. NYAKUNDI** **JUDGE**