1.Before the court is the application dated September 22, 2022 brought under section 3A and 18 of the Civil Procedure Act, Order 50 of the Civil Procedure Rules, 2010 and all enabling provisions of the law. The application seeks the following orders:
2.The application was premised on the grounds set out on the face of it, supporting affidavit sworn by Samuel Gicheru Mburuon September 22, 2022 and written submissions dated March 6, 2023. The genesis of this application is a suit filed by the respondent against the applicant in CMCC NO 410 OF 2022, Garden Estate Ltd V Soko Safi Ltd. The suit is premised on a dispute which arose from a lease agreement between the parties dated November 5, 2020.
3.Briefly, the applicant justifies the need for the transfer of the suit on two grounds. Firstly, that since the dispute relates to a breach of contract, the same fell under the jurisdiction of this Court. Secondly, the applicant states that the counterclaim it has raised in the suit exceeds the pecuniary jurisdiction of the subordinate court which is Kenya Shillings twenty-million (KSh 20,000,000/=).
4.The application was opposed by a replying affidavit sworn by Jacqueline Akinyion February 27, 2023, Grounds of Opposition filed on even date and submissions dated March 16, 2023. The gist of the objection by the respondent is that the lease agreement that the applicant was relying on for its prayers in the plaint did not exist and that the applicant was misleading the Court. In the circumstances the respondent averred that the suit had been properly filed in the lower court and that the prayers could be satisfactorily addressed without the transfer. In any case, the respondent averred that the counterclaim was defective as it was not accompanied by a verifying affidavit.
5.I have carefully considered the application the response as well as the written submissions and evidence presented by the parties in support of their respective stands. The only issue for determination is whether Nairobi CMCC NO E410 of 2022 Garden Estate Ltd v Soko Safi Ltd should be transferred to this court.
8.The pecuniary jurisdiction of the Chief Magistrate’s Court is spelt out in section 7(1) of the Magistrates Court Act which provides that:
9.From the evidence presented before this Court, it is clear that the applicant filed a Statement of Defence and Counterclaim dated June 28, 2022. This is not denied by the respondent who only states that the same is defective. Paragraph 24 of the said pleading specifies the prayers sought by the applicant against the respondent. These are:
10.I note that the respondent denies the existence of the lease, the validity of the counterclaim and the merit of the claim of KShs 20,000,000/= by the applicant. This Court cannot at this stage determine these matters. These are for the trial court to determine upon receipt of evidence. For now, this court is required to look at the claim by both parties and make a determination from that without getting into the merits or otherwise of the claim. In other words, even the view that the subordinate court could still hear the suit but only allow the maximum damages allowable within its pecuniary jurisdiction does not hold water. I again revert to the Court of Appeal’s finding in Joseph Muthee Kamau & Another V David Mwangi Gichure & Another, (2013) eKLR to the effect that:
11.It is therefore obvious against this background, that the counterclaim as raised by the applicant exceeds the pecuniary jurisdiction of the lower court. The question therefore is whether the court can exercise its jurisdiction to transfer the suit.
12.Again, judicial pronouncements from the Court of Appeal on this subject are in abundance and they binding on this court. I start by pointing out the position by JB Ojwang, J (as he then was) in the case of Boniface Waweru Mbiyu V Mary Njeri & Another,  eKLR. The Learned Judge expressed himself on the effect of a matter filed before a court with no jurisdiction as follows:
Determination and orders
15.I believe I have said enough to reflect on the issue before this Court. This court finds that the suit, which is the subject matter of this application, is incompetent and void in law ab initio; and therefore, it is not a suit that can be transferred to any other Court.
16.Ultimately, all orders emanating from CMCC No 410 of 2022, Garden Estate Ltd V Soko Safi Ltd are null and void. The application herein is untenable and it is dismissed. Each party shall bear its own costs.