https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12120

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **MISCELLANEOUS APPLICATION NO. 779 OF 2026** **KARIM PATEL 1ST APPLICANT** **TAZIM PATEL 2ND APPLICANT** **VERSUS** **KARIM PISANI 1ST RESPONDENT** **SAIRA PISANI 2ND RESPONDENT** **RULING** 1. By a Notice of Motion dated 6th July 2026, brought under Section 18(1)(b) and (2) of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules, 2010, the Applicants seek the stay, withdrawal and transfer to this Court of the proceedings they filed in the Chief Magistrate’s Court, Milimani Commercial Court, as *MCCC No. E2969 of 2022 – Karim Patel & Tazim Patel v Karim Pisani & Saira Pisani*. 2. The application is supported by the affidavit of Kananu Mutea sworn on 6th July 2026 and is founded on a Certificate of Urgency of even date. It is deposed that by a Plaint dated 30th May 2022 the Applicants instituted the subordinate suit to recover a debt of USD 159,357.33, then equivalent to KShs 18,598,593.98 at the Central Bank of Kenya’s mean exchange rate of KShs 116.71 to the US Dollar prevailing at filing; that owing to the shilling's subsequent depreciation to a mean rate of KShs 129.54 to the Dollar, the same claim now converts to approximately KShs 20,642,305.15; and that this sum exceeds the pecuniary jurisdiction conferred on the Chief Magistrate’s Court, placing the suit at real risk of being struck out for want of jurisdiction through no default of the Applicants' own. 3. Section 18(1)(b) of the Civil Procedure Act empowers this Court, on application or of its own motion, to withdraw any suit pending in a court subordinate to it and either try it itself or transfer it to a court competent to do so; subsection (2) permits the court thereafter seized of the matter to proceed from the point at which it was withdrawn. 4. The pecuniary ceiling said to have been breached is not in doubt: Section 7 of the Magistrates’ Courts Act, 2015 fixes the civil jurisdiction of a Chief Magistrate at claims not exceeding KShs 20,000,000. On the figures deposed to, the present claim, at the prevailing rate, sits some KShs 642,305 above that threshold. 5. The transfer of suits under Section 18 is a discretionary jurisdiction, exercised judicially and disturbed on appeal only where that discretion has miscarried. That discretion was recognized in ***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel* [2016] KECA 250 (KLR)**, applying ***Mbogo v Shah* [1968] EA 93)** when the Court stated that: ***“It is to be borne in mind that the court’s power to transfer proceedings from one court to another is discretionary. In Heinz Isbrecht v Charles Ochieng Ndiga (Msa) Misc. Application No. 20 of 1997, relied on by the appellant, it was held:-*** *“****When making or refusing an order of transfer the court will have regard to the nature and character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice. It is a discretionary power which will be exercised having regard to all the circumstances of the case****.”* ***As such, this Court can only interfere with the exercise of such discretion, if we are satisfied that it was not exercised judicially. It must be shown that the Judge acted on matters which she should not have acted or failed to take into consideration matters which she should have taken into consideration and in doing so arrived at a wrong conclusion.*** *(See****Mbogo v Shah [1968] EA 93****).”* 1. In exercising it, the Court weighs the convenience of the parties, the expense each would incur, the interests of justice and the risk of undue hardship, always mindful thatthe burden lies on the applicant to make out a strong case. A bare assertion of convenience will not do; the applicant must demonstrate, on the material before the court, why the doors of the court in which the suit was brought ought to be closed to it. 2. That discretion, however, presupposes a competent suit to transfer. As Nyarangi JA put it in the celebrated dictum from ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd* [1989] KLR 1**, *“jurisdiction is everything.”* A court without jurisdiction, which includes pecuniary jurisdiction, ought not to take any further step, and the Supreme Court has since confirmed that an order transferring a suit cannot be made unless the suit was, in the first instance, brought before a court possessed of jurisdiction to try it in ***Mumba & 7 others v Munyao & 148 others*** (Petition 3 of 2016) [2019] KESC 83 (KLR)). 3. Where a suit is incompetent from inception, no transfer can cure it: declining to sanction a transfer occasioned by a plaintiff’s own amendment of its pleadings beyond the trial court’s pecuniary ceiling, the Court of Appeal in **Coastal Bottlers Limited v Acqualine Distributors Limited (Civil Appeal E067 of 2021) [2024] KECA 1806 (KLR)** stated: ***“This position was again emphasized in the case Phoenix of E.A. Assurance Company Limited vs S. M. Thiga t/a Newspaper Service [2019] eKLR where this Court held that:“If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself...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.”*** * 1. ***It is evident from the above excerpt that a suit filed in a court without jurisdiction is a nullity in law, and anything founded on a nullity in law is equivalent to a nullity. It is clear from the amended pleadings that the amount of Kshs. 54, 088,307.00, claimed was well in excess of the pecuniary jurisdiction of the trial Magistrates’ court, and therefore, once the amendment was filed, the court had no jurisdiction to determine the suit, which was then rendered incompetent and a nullity. Consequently, the Judge ought not to have transferred a suit which was a nullity, ab initio to the High Court. The transfer of an incompetent suit to a court of competent jurisdiction could not sanitise or breathe life into a suit already rendered incompetent in the trial Magistrates’ court by the amendment.”*** 1. The question, then, is whether the present suit falls within that condemned category, or outside it. It falls outside it. The Applicants have not amended their Plaint; the debt claimed, USD 159,357.33, is precisely what was pleaded on 30th May 2022 and remains so today. What has moved is not the claim but the exchange rate used to state it in Kenya Shillings for jurisdictional purposes, a fact wholly external to the parties' pleadings, occasioned by the shilling's depreciation and not by any pleading or conduct of the Applicants. 2. At the date the suit was instituted, on the Applicants’ own computation, the claim converted to KShs 18,598,593.98, comfortably within the Chief Magistrate’s then, and current, KShs 20,000,000 ceiling. The suit was, accordingly, competently and properly filed in a court of jurisdiction; it was not, and is not, a nullity. 3. That said, a pecuniary ceiling denominated in Kenya Shillings but tested against a debt pleaded in United States Dollars cannot sensibly be left to drift in and out of a subordinate court's competence with each day’s Central Bank rate, nor should a litigant be made to relitigate the jurisdictional question afresh at every hearing date depending on that day’s mean rate. 4. It is precisely to guard against that instability, and the very real risk that the subordinate court, confronted with a claim now valued above its ceiling, may decline to proceed or strike out the suit for want of jurisdiction, that Section 18(1)(b) vests this Court with the power to act pre-emptively; and the overriding objective in Sections 1A and 1B of the Civil Procedure Act, together with Article 159(2)(d) of the Constitution, commends its exercise here: substantive justice, not the accident of an exchange rate, ought to determine whether these parties are heard on the merits of a long-standing debt. 5. This Court’s pecuniary jurisdiction being unlimited, no such difficulty can arise before it, and transferring the suit here removes the jurisdictional doubt entirely rather than leaving it to recur. 6. Applying those considerations to the facts deposed to, I am satisfied the Applicants have discharged the burden resting on them. Nothing before the Court suggests the Respondents would suffer any prejudice from a transfer that leaves the subject matter, the parties and the evidence entirely unchanged, save for the forum; the balance of convenience and the interests of justice favour a court whose competence over the sum claimed is beyond question, over one whose jurisdiction is presently in genuine doubt. 7. For those reasons, the application dated 6th July 2026 is allowed in the following terms: 1. *All further proceedings in Chief Magistrate’s Court, Milimani Commercial Court, MCCC No. E2969 of 2022, Karim Patel & Tazim Patel v Karim Pisani & Saira Pisani, are stayed with immediate effect pending compliance with paragraph (b) below;* 2. *The said suit is hereby withdrawn from the Chief Magistrate’s Court and transferred to this Court, the High Court of Kenya at Nairobi, Milimani Law Courts, Commercial and Tax Division, for hearing and final determination.* 3. *The record to be placed before the Deputy Registrar for allocation of a case number and further directions;* 4. *The costs of the application shall abide the outcome of the substantive suit.* **DATED and DELIVERED at NAIROBI this 30th day of July 2026.** **BENARD WAFULA MURUNGA** **JUDGE** HIGH COURT OF KENYA In the presence of: *Mulindi for the Applicants.* *N/A for Respondents* *Court Assistant: Kevin Babu*