https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11497

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **HCCC MISC E476 OF 2025** **WASINI RESORTS LIMITED.............................................APPLICANT/ RESPONDENT** **VERSUS** **KAREN INN SUITES LIMITED....................................1ST RESPONDENT/ APPLICANT** **KENNEDY GITAU MUIRURI.....................................2ND RESPONDENT/ APPLICANT** **GRACE WANJIRU MUIRURI.....................................3RD RESPONDENT/ APPLICANT** **RULING** 1. The 1st, 2nd and 3rd applicants’ notice of motion dated 30.6.2025 under section **80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules**, seeks that: - 2. **The order of 15.5.2025 ordering the transfer of CMCC 6008 of 2018 to this court for hearing and determination be reviewed, set aside and the application dated 12.5.2025 be dismissed.** 3. The application is supported by an affidavit sworn on 30.6.2025 by **Kennedy Gitau Muiruri** and written submissions dated 3.2.2026. 4. Principally, the applicants contend that this court has no jurisdiction to transfer a suit from a subordinate court that had no jurisdiction at the time the suit was instituted or when the matter was set down for hearing. 5. The applicants further contend that the order was made *ex parte.* 6. According to the applicants, the respondent misled the court by relying on the fluctuating value of the Kenya Shilling against the United States Dollar (USD) as justification for the transfer. 7. The applicants faulted the respondent for failing to mention that the issue of jurisdiction and the fluctuating exchange rates had been raised by them before the trial court. 8. The applicants therefore argued that this matter and the ensuing order confirm the trial court’s lack of jurisdiction. 9. The applicants’ position is that the respondent ought to have withdrawn the incompetent suit and file a fresh suit before the High Court. 10. The applicants relied on the Court of Appeal decision in **Joseph Muthee Kamau & another v David Mwangi Gichuru & Another [2013] eKLR** and **Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour and Travel [2016] KECA 250 (KLR)** to the effect that jurisdiction must exist at the time of filing suit or at the latest commencement of hearing. **Response** 1. The respondent opposed the application through a replying affidavit sworn by its finance director, **Muraya Chege** on 29.9.2025 and written submissions dated 23.2.2026. 2. The respondent argued that the issue of jurisdiction is *res judicata*, having been raised by the applicants in their preliminary objection dated 9.5.2023 and dismissed by **Hon. W. Michieni** (as she then was). 3. The respondent relied on the Court of Appeal’s decision in **Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] KECA 942 (KLR)** on *res judicata*. 4. The respondent concurred that a suit instituted in a court that lacks jurisdiction cannot be transferred under **section 18 of the Civil Procedure Act**, as affirmed in **Phoenix of E. A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA.** 5. However, the respondent was firm that lower court had jurisdiction over the suit that was before it as per section 7 which caps pecuniary jurisdiction at Kshs. 20 Million. 6. The respondent highlighted that in the further amended plaint filed on 7.8.2019, it sought: - 7. **USD. 181,673.56 together with interest at 2% per annum with effect from 27.4.2018 until payment in full.** 8. **In the alternative to (a) above, the sum of USD 181,673.56 together with interest at 5% per annum against the 2nd and 3rd applicants with effect from 27.4.2018 until payment in full.** 9. **The sum of Kshs. 922,644 against the 1st applicant.** 10. The respondent submitted that at the time of filing the further amended plaint, the Central Bank of Kenya USD exchange rate was Kshs. 103.2722 hence the amount sought was less than Kshs. 20 Million. 11. The respondent pointed out that the applicants admit that applying the appropriate exchange rate at the time of institution of the suit, USD 181,673.56 and Kshs. 922,644 would fall within the Magistrates court’s pecuniary jurisdiction. 12. The respondent disputed the notion that filing the application to transfer the suit amounted to an admission that the Magistrates Court lacked jurisdiction. 13. The respondent also claimed that the applicants paid the admitted sums of USD 44,128 and Kshs. 453,530/-, reducing the amount for determination to USD 137,545.56 and Kshs. 469,114. It faulted the applicants for failing to disclose this. 14. In conclusion, the respondent urged the court to dismiss the application, asserting that the court correctly exercised its discretion in transferring the suit. **Analysis and Determination** **Of *res judicata*?** 1. The doctrine of *res judicata* is codified in **section 7 of the Civil Procedure Act**. It provides that: - ***“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”*** 1. The applicants exhibited their PO dated 9.5.2023 challenging the Magistrates court’s jurisdiction. 2. However, the respondent did not exhibit the ruling of 21.7.2023 dismissing the PO. 3. Be that as it may, the present application seeks to review the orders directing the transfer of the respondent’s suit before the Magistrates court. 4. The impugned orders were issued upon the respondent’s application for transfer based on apprehension that the Magistrate’s court jurisdiction over the matter may be divested due to fluctuating interest rates. 5. The court allowed the application on the premise that such an application ought to be granted straight away in light of the figures involves which are in US Dollars and are affected by the fluctuation of the rate of exchange. 6. Thus, I do not think that *res judicata* can be invoked in the circumstances. **Should the order for transfer of the suit be set aside?** 1. The court has discretion to review or set aside its own orders, for *inter alia*, a sufficient reason. **Wangechi Kimita & Another v Mutahi Wakabiru Ca No 80 Of 1985 (Unreported)** and **Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR**. 2. Whereas it was argued that a suit instituted in a court that lacks jurisdiction cannot be transferred. And that jurisdiction must exist at the time of filing suit or at the latest commencement of hearing. What are the circumstances of this case? 3. Three points that stood out are that: - 4. In the ruling of 29.5.2020, L. Gicheha entered judgment on admission against the defendant for USD 44,128 and Kshs. 453,530/-. 5. The amount claimed in the respondent’s further amended plaint is **USD 181,673.56 together with interest at 5% per annum.** At the time of filing the further amended plaint, the Central Bank of Kenya USD exchange rate was Kshs. 103.2722. 6. The respondent confirmed that the applicants paid the admitted sums of USD 44,128 and Kshs. 453,530/-, reducing the amount for determination to USD 137,545.56 and Kshs. 469,114. 7. The plaint was filed on 27.6.2018. The exchange rate as at that date was Kshs. 101.03. 8. The value of **USD 181,673.56 in Kenya Shillings** was about Kshs. 18.354 M, which was below the Kshs. 20 Million capping for the pecuniary jurisdiction of the Magistrates court. 9. Fluctuation of the exchange rates would impact the value of the claim. Hence, the transfer. Therefore, in the end, I find that there is no sufficient reason for review of the order of **15.5.2025.** **Disposal** 1. The applicants’ application dated 30.6.2025 is dismissed with costs. **Dated, signed and delivered at Nairobi through Microsoft Teams online application this 16th day of July, 2026** **------------** **F. Gikonyo M** **Judge** **In the presence of: -** Kenneth for respondents Orenge for Applicant CA- Ivan/Aggrey