[2004] KEHC 2541 (KLR)
The High Court held that it is not proper to transfer a suit from the magistrate's court to the High Court if the lower court lacks jurisdiction, especially after an intended amendment to the plaint would place the matter outside the lower court's jurisdiction. The correct procedure is for the applicant to withdraw...
Source-derived case information.
- Citation
- [2004] KEHC 2541 (KLR)
- Parties
- Applicant: Abdalla Ngonyaga Juma; Respondent: Nur Mohammed Yunis Kana
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 120 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit From Magistrate's Court to High Court
- Outcome
- application dismissed with costs
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Amendment of Pleadings, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdalla Ngonyaga Juma
Applicant
Nur Mohammed Yunis Kana
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit From Magistrate's Court to High Court
Legal Issues
- 1 Whether the High Court can transfer a suit from the magistrate's court where the lower court lacks jurisdiction after intended amendment of the plaint.
- 2 Whether the applicant should withdraw the suit in the lower court and file a fresh suit in the High Court instead of seeking transfer.
- 3 Whether the application for transfer is an attempt to circumvent payment of requisite court fees.
Ratio Decidendi
The High Court held that it is not proper to transfer a suit from the magistrate's court to the High Court if the lower court lacks jurisdiction, especially after an intended amendment to the plaint would place the matter outside the lower court's jurisdiction. The correct procedure is for the applicant to withdraw the suit from the magistrate's court and file a fresh, complete suit in the High Court, which has the requisite jurisdiction to determine the matter. The court found that ordering a transfer in these circumstances would be disorderly and could be seen as an attempt to circumvent the payment of proper court fees. Accordingly, the application for transfer was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for transfer of suit is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
MISC. APPLICATION NO.120 OF 2004
ABDALLA NGONYAGA JUMA …………………………… APPLICANT
VERSUS
NUR MOHAMMED YUNIS KANA ……………………… RESPONDENT
Coram: Before Hon. Justice Mwera
Odiaga for applicant
Kilonzo for REPUBLIC OF KENYA
Court clerk Sango
R U L I N G
The applicant herein calls into play SS 3A, 18 Civil Procedure Act as per his application dated 24. 2.04 for orders that the Mombasa SPMCC 3845/2002 be transferred from the lower court to this High Court for hearing and final determination.
The grounds on which the application is based state inter alia (in paraphrase):
1) That after the filing of this suit ----- other facts have come up requiring that the plaint be amended to accommodate those facts so that the same are properly determined.
2) That the magistrate’s court where the suit is currently filed will not have jurisdiction to entertain the amended suit hence the need for the transfer to be followed by intended amendment.
3) That the suit touches on two title deeds one of which may fall to be revoked after the intended amendment.
The applicant swore an affidavit in support annexing both the plaint in the lower court and the draft amended one.
The respondent filed grounds of opposition to the effect that if the lower court had/has no jurisdiction over the suit there then this court cannot transfer the lower court suit as the applicant desires and that instead he should withdraw that suit and file a proper one in a competent court (this court). That seemingly the applicant’s move is intended to circumvent the need to pay requisite fees in the High Court and thus the application lacks merit.
The court heard briefly submissions from each side and without having to go into the contents of the annexed plaint and intended plaint or the law invoked, its view is that if the applicant has come to realise that the suit he filed in the lower court will fall outside the jurisdiction of that court if the plaint is amended he should withdraw that suit there of course on terms if so deemed, and file a proper and complete suit in the High Court. It does not sound neat or orderly to order the transfer of the suit in the lower court, bring it here so that the applicant amends it and thereafter this court entertains it. In sum if the suit as crafted falls within the lower court jurisdiction as Mr. Odiaga told this court, then let it be determined finally there. But if his client has realised that the reliefs that he seeks can only be given (or declined) by the High Court he sould do well to file a fresh suit in the form he things/knows will accord him the reliefs sought.
In sum this application is dismissed with costs.
Delivered on 8th April 2004.
J.W. MWERA
JUDGE