https://new.kenyalaw.org/akn/ke/judgment/scc/2026/143

Pinternagel v Kitiavi & another (Commercial Case E251 of 2026) [2026] SCC 143 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] SCC 143 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E251 of 2026 TN Mwangeka, RM July 1, 2026 Between Bert Pinternagel Claimant and Brian Juma Kitiavi 1st Respondent Samuel Mwanga 2nd Respondent Judgment 1.By a statement of Claim dated 8th December 2025, the Claimant prays for Judgment in the sum of Kshs. 400,000/=. 2.In summary, the Claimant avers that he was a rent paying tenant in a premises managed by the Respondent. The Claimant used Kshs 400,000/- to renovate the premises he was renting he was however notified to vacate the premises which eviction resulted in his humiliation. The Claimant further asserts that when he came back into the house, he suffered respiratory complications and a hyperallergic reaction due to the toxic fumes from the chemicals used to paint the timber of the bed 3.The Respondent denied the claim and stated that he was merely the property manager of the premises and not the owner. Additionally, the Respondent avers that the Claimant has failed to prove breach of contract, personal liability, damages, service of the alleged objection letter, or any agreement to pay Ksh. 400,000. The evidence instead shows that the Claimant accepted the refund, signed the relevant documents, complied with the MOU, vacated peacefully, and withdrew the complaint. 4.On 14th May 2026, the Claimant withdrew that Claim against the 2nd Respondent after sevice was ineffective and the matter proceeded for hearing on 11th June 2026 against the 1st Respondent with each side presenting their witnesses. 5.Upon consideration of the pleadings and the evidence herein the court finds that the sole issue for determination is whether the claim is within the local limits of the court. Analysis and Determination Whether the Claim is within the Local Limits of the Court 6.According to the Statement of Claim, the Claimant indicated that he resides in Kwale County, while the Respondent is also resident in Kwale County. At hearing both parties confirmed this fact in the course of their testimonies. 7.Section 11 of the Small Claims Court Act provides that the Chief Justice shall, by notice in the Gazette, designate the local limits of the jurisdiction of the Small Claims Court. Vide Gazette Notice No. 13404 of 2021, the Chief Justice established the Small Claims Court at Mombasa with effect from 1st December 2021, to exercise jurisdiction within Mombasa County only. 8.Section 15 of the Small Claims Court Act provides that a party may lodge a claim in a court within whose local limits:a.the person ordinarily resides or carries on business;b.the subject matter of the claim is situated;c.the contract was made or was to be performed;d.the cause of action arose; ore.the Respondent resides. 9.The subject matter herein revolves around the undisputed fact that the Claimant was a renter at a premises managed by the Respondent. The said premises is located in Ukunda, Kwale County. 10.The documents produced by the Claimant do not demonstrate that the transactions were undertaken within Mombasa County. Consequently, this Court finds that the claim herein does not fall within this court’s territorial jurisdiction as none of the jurisdictional anchors prescribed under section 15 (a) to (e) of the Small Claims Court Act have been met. 11.It is trite law that jurisdiction is the foundation upon which any judicial authority rests. This principle has been firmly established in a long thread of cases, most notably in the celebrated decision of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, which stands as the locus classicus on the question of jurisdiction. 12.Jurisdiction can only be conferred upon a court by the constitution and statue. In this case the relevant constitutional provision establishing the Small Claims Court is Article 169 (1)(d) of the Constitution of Kenya, 2010 and for all intents and purposes, it is a subordinate court with Section 15 of the Small Claims Court Act outlining the territorial jurisdiction of the court. 13.This court takes judicial notice of the fact that the Chief Justice has not yet established a designated Small Claims Court station in Kwale County, had there been a court, Rule 34 of the Small Claims Court Rules would have empowered this court upon application by a party for sufficient cause shown, to transfer proceedings thereto as this Court lacks jurisdiction to transfer the proceedings to the Chief Magistrate’s Court at Kwale Law Courts. Disposition 14.Consequently, the Statement of Claim dated 8th December 2025 is hereby struck out for want of territorial jurisdiction. There shall be no orders as to costs. SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS…..1ST…….DAY OF…….JULY… 2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;……N/A…for Claimant;Respondent in person C/A Esther