Legal Guides

Transfer of Civil Suits in Kenya: Sections 17–18 Procedure and Evidence

A transfer of a civil suit in Kenya moves an existing case from one court to another court that can lawfully hear it. It is not a way to choose a more sympathetic judge, repair every filing mistake or restart a weak case. The applicant must identify the statutory power, prove why the present station is unsuitable, show that the proposed court is competent and explain how transfer will serve justice without unfairly disadvantaging another party.

The right approach depends on where the case was filed, whether more than one subordinate court had jurisdiction, the stage already reached and whether the proposed move concerns venue or a fundamental lack of jurisdiction. Before filing an application, obtain the pleadings, orders and case-status record. A transfer request built only on convenience, fear or assertion is vulnerable to dismissal and an adverse costs order.

The statutory powers under sections 17 and 18

Sections 17 and 18 of the Civil Procedure Act provide the central framework. Section 17 applies where a suit could lawfully have been instituted in any one of two or more subordinate courts. A defendant may, after notice to the other parties and at the earliest possible opportunity, ask the High Court to determine in which competent subordinate court the suit should proceed. The timing and notice requirements are part of the provision, not minor formalities.

Section 18 gives the High Court broader supervisory power. On a party’s application, after notice and hearing those who wish to be heard, or on its own motion, the High Court may transfer a suit, appeal or other proceeding before it to a competent subordinate court. It may also withdraw a proceeding from a subordinate court and try it itself, transfer it to another competent subordinate court, or later retransfer it. The receiving court may, subject to directions, retry the matter or continue from the point at which it was transferred.

These provisions should be read with sections 12 to 15, which govern the place of suing for different kinds of claims. Section 15 generally connects venue to where the defendant resides or carries on business or where the cause of action wholly or partly arose, subject to the Act’s earlier rules. The applicant should therefore show both why the present court was a permissible forum and why another competent forum is now preferable.

Transfer cannot safely be treated as a cure for missing jurisdiction

Venue and jurisdiction are different. Venue asks which of several competent courts should hear the case. Jurisdiction asks whether the first court had lawful authority over the subject matter, territory and value of the dispute. Kenyan decisions have repeatedly warned that the section 18 discretion should not be assumed to breathe life into a suit that was a nullity from the start because it was filed before a court without jurisdiction.

The practical consequence is serious. Before seeking transfer, check the statute creating the cause of action, any exclusive mandate of a specialised court or tribunal, the pecuniary limit of the magistrate, the property location and the relief claimed. Where original jurisdiction is disputed, address that issue directly and do not present transfer as an automatic remedy. A pure jurisdictional issue may require the approach described in our guide to preliminary objections in Kenya. Depending on the defect, withdrawal and fresh filing may be considered, but limitation, costs, interim orders and use of existing evidence require specific advice.

In Kamau and another v Wanjiru and 9 others, the High Court discussed the general transfer power under section 18 and the need to place the request within the court’s discretion. The decision is a useful current reminder that the existence of power does not by itself prove that a transfer is justified. The court still examines jurisdiction, the factual grounds and the interests of justice.

Grounds that may support a transfer

No single consideration decides every application. The court weighs the whole record. Common grounds include the location of parties and witnesses, the place where the transaction or wrong occurred, access to documents or property, related proceedings, security concerns supported by evidence, disability or exceptional travel burdens, delay at the existing station and the risk of inconsistent decisions.

Convenience of parties and witnesses

Convenience must be demonstrated, not declared. List each material witness, where that person is based, what issue the witness will prove and the realistic cost or difficulty of attending the present station. Separate essential witnesses from formal witnesses whose evidence could be agreed or given remotely. Also account for the respondent’s witnesses. Moving a case merely shifts inconvenience if the application ignores the other side.

Connection between the dispute and the proposed court

Show where the contract was made or performed, where the accident or other event occurred, where the land or business records are located and where the defendants reside or work. These facts should be linked to the applicable place-of-suing provision. A party’s later relocation or preference for counsel in another town is rarely persuasive without a stronger connection to the dispute.

Related cases and consistent case management

If another competent court already handles a closely related suit, identify the parties, pleadings, issues and current stage. Transfer may reduce duplication or the risk of inconsistent orders, but it is not the same as a stay for sub judice or an order for consolidation. The guide on sub judice under section 6 explains the stricter test for a later parallel suit. State the exact case-management order sought after transfer rather than assuming the files will automatically be combined.

Fair-trial or security concerns

A reasonable concern about safety, intimidation or practical access may be relevant when supported by incident reports, affidavits, medical material, correspondence or court records. Generalised suspicion about a court station, judicial officer, local community or opposing party is not enough. Transfer is not a substitute for recusal, review or appeal, each of which has a different legal test.

Evidence to assemble before applying

A concise, indexed application is usually stronger than a long affidavit built on conclusions. Collect:

• the plaint, defence, counterclaim and all amendments;
• the latest orders, directions and a current case-status printout;
• the filing date and details of any scheduled hearing;
• a table of material witnesses, their locations and the issues they address;
• documents showing where the cause of action arose and where parties reside or conduct business;
• the law establishing the proposed court’s subject-matter and pecuniary jurisdiction;
• pleadings and orders from any genuinely related proceeding;
• travel, medical, disability, security or cost evidence relied on;
• correspondence showing whether the other parties consent or object; and
• a draft order identifying the existing and proposed court, case number and treatment of pending dates.

Verify facts before swearing the affidavit. If a witness has moved, update the address. If remote testimony is feasible, explain why it does or does not resolve the stated hardship. If the application relies on delay, use objective information about the file rather than criticism unsupported by the record.

How to make the application

First identify the correct court and provision. A section 17 defendant should act at the earliest possible opportunity and give notice to the other parties. A section 18 request to the High Court should state whether the applicant seeks withdrawal from a subordinate court, transfer from the High Court to a competent subordinate court, or movement between subordinate courts through the High Court’s power.

Prepare the application in the form required by the Civil Procedure Rules and local practice, normally supported by an affidavit. Quote the present case number, parties, station and stage exactly. Name the proposed receiving court and prove its competence. Attach the essential record rather than asking the transfer court to rely on an incomplete description of the underlying case.

Serve all parties and comply with existing directions. Filing a transfer motion does not by itself cancel a hearing, stop deadlines or stay the original suit. If urgent temporary relief is required, ask expressly for a stay or preservation order and explain the immediate prejudice. The evidence for interim protection should be separated from the merits of the transfer.

At the hearing, address prejudice and efficiency candidly. Explain what work has already been completed, whether witnesses have testified, whether the receiving court will need to retry anything and how documents or exhibits will move. A late application made after an unfavourable interim ruling needs a clear explanation because it may look tactical.

How to oppose an unjustified transfer

A respondent should answer with evidence, not simply insist on the original forum. Start with jurisdiction and the correct statutory route. If the proposed court lacks authority over the value, subject matter or relief, identify the specific limit. If the original court lacked jurisdiction, explain why the applicant’s transfer theory cannot cure that foundational defect.

Then test each alleged inconvenience. Identify witnesses near the current station, remote-hearing options, prior consent to venue, steps already taken and the cost of moving the file. Challenge vague references to safety or bias with the absence of reports, dates or particular incidents. If the application follows a ruling, adjournment or imminent hearing, place that chronology before the court.

Propose a less disruptive solution where possible: remote testimony, a commission to take evidence, coordinated directions in related matters, transfer of only one proceeding or an expedited timetable. The court’s objective is a fair and efficient hearing, not punishment of either party for preferring a different location.

Deadlines and timing risks

Section 17 expressly requires the defendant to apply at the earliest possible opportunity. Even under section 18, delay matters to discretion. A party who participates for months, completes pre-trial steps or waits until evidence begins should explain why the relevant facts were not raised earlier. The closer the case is to judgment, the greater the potential waste and prejudice.

Continue observing defence, witness-statement, discovery, hearing and appeal deadlines unless the court grants a stay or new directions. Do not assume an administrative request, letter to a registry or pending motion suspends them. If limitation is near, obtain advice before withdrawing a case in the hope of refiling elsewhere; a transfer order and a fresh action are legally different.

Orders, costs and what happens after transfer

A well-drawn order should state which proceeding is withdrawn, the receiving court, whether existing evidence and orders remain in force, what happens to scheduled dates and who transmits the original or electronic record. Section 18 permits the receiving court, subject to special directions, either to retry the matter or proceed from the stage reached. Parties should obtain the sealed order and follow up with both registries.

The transfer court may award costs immediately or leave them in the cause. A speculative or tactical application can produce adverse costs and delay. A successful applicant should not assume that every related expense will be recovered. Keep evidence of service, travel and necessary registry steps, and avoid unnecessary duplication of filings.

Common mistakes

• asking for transfer without proving that the receiving court has jurisdiction;
• confusing an inconvenient venue with a total absence of jurisdiction;
• filing late without explaining the delay;
• failing to serve every affected party;
• asserting witness inconvenience without naming witnesses or their evidence;
• using transfer to avoid an unfavourable judge or ruling;
• assuming the motion automatically stays the original proceedings;
• ignoring related suits that may instead raise res judicata, sub judice or consolidation; and
• withdrawing and refiling without checking limitation and the status of interim orders.

A practical decision checklist

1. Confirm the present court’s subject-matter, territorial and pecuniary jurisdiction.
2. Identify every other court that could lawfully hear the claim.
3. Read sections 12 to 18 against the pleaded facts and relief.
4. Record the present procedural stage and all active deadlines.
5. Gather witness, location, security, cost and related-case evidence.
6. Choose the correct section 17 or section 18 route and act promptly.
7. Decide whether a separate stay or preservation order is necessary.
8. Draft an order that can be implemented by both registries.
9. After the ruling, obtain the sealed order and confirm receipt of the full file by the receiving court.

If you need to move a civil case, or oppose a proposed transfer, send the complete pleadings, latest orders, hearing dates and a list of witnesses and locations to a Kenyan civil-litigation advocate. An early jurisdiction and evidence review can identify the correct court, protect live deadlines and produce a transfer request or response that the court can decide on a reliable record.