1.This is a Notice of Motion application dated May 18, 2023, brought under Sections 1A, 1B, 3A, 7 and 18 of the Civil Procedure Act, Order L Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The applicant seeks stay of the proceedings in Thika SCCCOMM E449 of 2023, withdrawal of the proceeding as well as the transfer of the proceedings from the Small Claims Court to the Chief Magistrate’s Court.
2.The gist of the application is that the Small Claims Court lacks the jurisdiction to hear and determine the matter as the subject matter exceeds is pecuniary jurisdiction. The applicants will be highly prejudiced if the matter proceeds in the Small Claims Court. That the Respondent will not suffer prejudice if the matter is transferred to the Chief Magistrate’s Court.
3.The application is supported by the annexed affidavit of Robinson Wango Njoroge, he depones that the respondent from the amended statement of claim seeks judgment of Kshs 570,000/= from the applicant while vide his defence and counter claim he claims judgment in the sum of Kshs 1, 850,000/= from the respondent. That this amount is above the pecuniary jurisdiction of the Small Claims Court, hence the application. It is contended that the applicant is apprehensive the Small Claims Court will determine the matter within 60 days and thus will not be able to lodge his claim thereafter.
4.In opposing the application, the respondent Lydia Wangui Kamau filed the Replying affidavit sworn on June 2, 2023, wherein she depones that the application is devoid of merit and an abuse of the process of the court. The counter claim is based on fraud and misrepresentation on facts, the agreement was entered into voluntarily between the applicant and the Respondent.
5.The application was heard by way of written submissions. The applicant filed submissions on June 7, 2023 while the respondent filed submissions on June 12, 2023.
6.Counsel for the applicant urged the court to exercise its supervisory jurisdiction over the subordinate courts as enshrined under Article 165 of the Constitution and give directions as it may consider appropriate.
7.He submitted that while the trial court has jurisdiction to enter into an inquiry on the matter in dispute it lacks the jurisdiction to grant the counter claim in full. He urged the court to grant the orders sought.
8.It was submitted for the respondent that the applicant had failed to demonstrate a strong case that warrants the transfer of the suit. Want of jurisdiction in Small Claims Court is no ground for transfer of proceedings. Case cited - Gaikia Kimani Kiarie vs Peter Kimani Kiramba (2020) eKLR where the court held: “if the court has no jurisdiction over the matter when the claim was filed, it would then mean that the said Counter Claim by the Defendant is a nullity in law and as the suit is incompetent and the court does not have jurisdiction to transfer the matter...”
9.In conclusion counsel urged the court to finds that it lacks jurisdiction to order the transfer of the claim from the small Claims Court.
Analysis and determination
10.I have considered the application, the affidavit in response and the rival submissions. The issue for determination is whether this court should transfer SCCCOMM E449 of 2023 from the Small Claims Court to the Chief Magistrate’s Court.
12.The issue in dispute is that by a counter claim the applicant claims from the plaintiff/respondent a sum of Kshs 1,850,000/= which exceeds the pecuniary jurisdiction of the small claims court.
13.Rule 34 of the Small Claims ‘Court Rules deals with the power to transfer proceedings from the Small Claims Court. The rules provides that:
14.In the dispensation of justice, Article 165(6) of the Constitution confers upon the High Court jurisdiction to transfer a matter to and from the Small Claims Court. The transfer may be exercised at any stage on its own motion or through the application by either party. The applicant should however demonstrate that there are sufficient reasons for the transfer.
16.The issue of jurisdiction is key in the dispensation of justice and without jurisdiction the court should down its tools as aptly stated in Owners of Motor Vessel "Lilians" vs. Caltex Oil (K) Ltd  KLR 1:
17.The pecuniary jurisdiction of the Small Claims Court having been set at Kshs 1 Million, it is not in dispute that the amount of Kshs 1,850,000/= as claimed in the counter claim exceeds the pecuniary jurisdiction of the that court.
18.It is important to note before the counter claim, the Small Claims Court was vested with the jurisdiction to determine the matter as the plaintiff/respondent had filed the suit claiming Kshs 570, 000/= form the defendant/applicant for breach of contract. The lack of jurisdiction by the Small Claims Court has been brought by the existence of new circumstances after the suit was filed.
20.It is apparent that this court is clothed with the jurisdiction to order a transfer of a suit. Therefore, In the exercise of its supervisory jurisdiction the court considers that justice will properly be served if the parties are allowed to ventilate their issues in a court vested with the jurisdiction.
21.In the circumstances, this court finds that it is in the interest of justice that Thika SCCCOMM E449 of 2023 be transferred from the Small Claims Court to the Chief Magistrate’s Court in Thika for final disposition.
22.The application dated May 18, 2023 is merited and is allowed as follows:i.Thika SCCCOMM No. E449 of 2023 be and is hereby transferred to Thika Chief Magistrate’s Court for final disposition on a priority basis.ii.The costs of the application to abide by the outcome of trial.
It is so ordered.