https://new.kenyalaw.org/akn/ke/judgment/scc/2026/154

Odili v Wanyonyi (Commercial Case E082 of 2026) [2026] SCC 154 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] SCC 154 (KLR) Republic of Kenya In the Small Claims Court at Malaba Commercial Case E082 of 2026 AZ Ogange, RM July 14, 2026 Between Gilbert Mophat Odili Claimant and Miriam Nangekhe Wanyonyi Respondent Ruling 1.What is before me for determination is the respondent’s application dated 23rd June 2026 seeking the following prayers: -a)That the Claim herein be dismissed and/or struck out for want of territorial jurisdictionb)Costs to be paid by the Claimant 2.The application is supported by grounds on the face of the application and the supporting affidavit of the Respondent which grounds are as hereunder: - that the cause of action arose within Chebukupe sub-location where the Respondent resides and thus Bungoma Law Courts is seized with territorial jurisdiction to hear and determine the matter. That the Claim is an abuse of court process and that in its entirety offends the provisions of the Small Claims Court Act as well as those of the Civil Procedure Act. 3.The application is opposed vide the Replying Affidavit of the Claimant sworn on 2nd July 2026 wherein it is deponed that the cause of action arose within Malaba Town and as such this court is the proper forum for institution of the suit. That the applicant has deliberately ignored the provisions of the Small Claims Court Act governing the territorial jurisdiction of the court. That it is in the interest of justice that the instant application be dismissed with costs. 4.The Respondent has filed a supplementary affidavit sworn on 4th June 2026 wherein it is deponed that the Mpesa statements do not show that money was disbursed to her a fact which is denied in Malaba and thus the proper forum to hear this matter is Bungoma Law Courts. 5.This matter came up for directions on 24th June 2026 when directions regarding disposal of the application by way of submissions were taken. The matter was mentioned on 8th July 2026 to confirm filing of submissions and the court reserved the matter for ruling on 14th July 2026. Both counsel have filed submissions which I have read and considered. 6.On the issue as to whether this court has territorial jurisdiction to hear and determine this matter, in CM & A Logistics Limited v Upland Premium Diaries and Foods Limited (Civil Appeal E295 of 2022) [2022] KEHC 14428 (KLR) (Civ) (21 October 2022) (Judgment) Neutral citation: [2022] KEHC 14428 (KLR) the court held as follows: -“The adjudicator did not deal with the other aspect of the preliminary objection that is the territorial jurisdiction of the small claims court. Although the respondent did not cross-appeal against the failure of the court to resolve this issue, i will deal with the matter for completeness and to avoid further delay and escalation of costs.The place of business of a company, unless it is agreed on the face of the pleadings, is a question of fact hence the such an objection does not merit consideration as a preliminary objection within the meaning of Mukisa Biscuit Manufacturing Case (Supra). The respondent ought to have filed an application to strike out the suit as the place of business ought to be ascertained by evidence.The respondent relied on Gazette Notice No. 3791 dated April 23, 2021 where the Ag Chief Justice conferred on the small claims court in Nairobi jurisdiction to deal with matters falling within and or arising from Nairobi county. This is pursuant to section 4(1) of the SCCA which provides that the Chief Justice may by notice designate any court station as a small claims court with such geographical jurisdiction as may be specified in the notice. Section 11 goes on to provide that the Chief Justice shall determine and publish a notice in the gazette designating the local limits of the jurisdiction of the small claims court.While the SCCA provides for the local limits of jurisdiction of the court, it does not state or define the place of suing. Unlike the Civil Procedure Act (Chapter 21 of the Laws of Kenya), which at sections 11 to 15 provides for the place of suit, the SCCA does not so provide. Since the Civil Procedure Act does not apply to the SCCA, the test for place of suing cannot be constrained by place of business rather the court only needs to be satisfied the subject of the suit has a connection to the local jurisdiction. In the case of a contract, it may consider several factors including where the contract was made and or where it is being performed. In this case, I would nevertheless dismiss the objection based on territorial jurisdiction of the court. 7.This court is further guided by the provisions of Section 15 of the Small Court Act and which I reproduce as hereunder: -15.(1)A person has the right to lodge a claim before Parties to the Court only if—such a person ordinarily resides or carries on business within the local limits of the jurisdiction of the Court; the subject matter of the claim is situated within the local limits of the jurisdiction of the Court; the contract to which the claim relates was either made or was intended to be performed within the local limits of the jurisdiction of the Court; the cause of action arose within the local limits of the jurisdiction of the Court; or the defendant to the claim resides within the local limits of the jurisdiction of the Court. 8.I have considered the submissions by both counsel and I find the reliance on the provisions of the Civil Procedure Act to be misplaced, given that the Small Claims Court Act contains express provisions governing territorial jurisdiction. 9.I further note that the authority relied upon by counsel for the applicant is not binding on this court as it is a decision of a court of coordinate jurisdiction. While such a decision may be persuasive, I reiterate that it is not binding, and in the circumstances of this case I respectfully decline to follow it. 10.Under Section 15 of the Small Claims Court Act the parties may file a suit either where parties reside or carry on business. The provision must be read holistically and not piecemeal. 11.Further as observed in the case of CM & A Logistics Limited v Upland Premium Diaries and Foods Limited (Civil Appeal E295 of 2022) [2022] KEHC 14428 (KLR) (Civ) (21 October 2022) (Judgment) Neutral citation: [2022] KEHC 14428 (KLR) the concept of place of suing is not defined with the same degree of precision as is found under the Civil Procedure Act. Whether a matter falls within the territorial jurisdiction of a particular Small Claims Court therefore necessitates an inquiry on where a party resides, conducts business or where the cause of action arose. 12.The Court is alive to the practical difficulties that have arisen in the application of Section 15 of the Small Claims Court Act and notes, as an obiter observation, that efforts are presently underway to address some of these concerns through proposed legislative amendments currently undergoing public participation. Be that as it may, the court must determine the issue on the basis of the law as it presently stands. 13.In the court’s view, the territorial jurisdiction conferred under the Act remains sufficiently broad and the instant application therefore must fail. 14.The upshot of my findings is that the Application lacks merit and is dismissed with cost to the Claimant which I assess at Kshs. 3,000/=. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SMALL CLAIMS COURT THIS 14TH DAY OF JULY 2026.In the Presence ofMs. Waswanni for the Claimant andMr. Wamalwa for the RespondentCourt Assistant: Paul OtienoA.Z. OGANGERESIDENT MAGISTRATE/ADJUDICATOR