[2005] KEHC 2556 (KLR)
The court found that both the cause of action and the residence of the defendant and third parties were centered in Kisii Town. The applicant's main office is also in Kisii. Section 15 of the Civil Procedure Act requires that suits be filed where the defendant resides or where the cause of action arises. The...
Source-derived case information.
- Citation
- [2005] KEHC 2556 (KLR)
- Parties
- Applicant: A Jiwa Shamji Ltd; Respondent: Alfayo Ngeresa Mabera
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 211 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application granted
- Legal Topics
- Transfer of Suits, Jurisdiction of Magistrates Courts, Venue of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A Jiwa Shamji Ltd
Applicant
Alfayo Ngeresa Mabera
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from the Principal Magistrate Court (Milimani) to the Kisii Magistrate’s Court.
- 2 Whether the cause of action and parties' residence justify transfer under Section 15 and 18 of the Civil Procedure Act.
Ratio Decidendi
The court found that both the cause of action and the residence of the defendant and third parties were centered in Kisii Town. The applicant's main office is also in Kisii. Section 15 of the Civil Procedure Act requires that suits be filed where the defendant resides or where the cause of action arises. The evidence, including the delivery note, confirmed that the transaction occurred in Kisii. Section 18 of the Civil Procedure Act empowers the High Court to transfer cases to the appropriate court. Therefore, the court held that the suit should have been filed in Kisii and ordered its transfer to the Kisii Senior Principal Magistrate’s Court for hearing and disposal.
Court Disposition
application granted
Orders
- The suit Principal Magistrate Court (Milimani) No.6016 of 2004 is transferred to Kisii Senior Principal Magistrate’s Court for hearing and disposal.
- Costs in the cause.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT KISIIMISC. APPL. NO.211 OF 2004A JIWA SHAMJI LTD …………………………………………………. APPLICANTVERSUSALFAYO NGERESA MABERA …………………………………. RESPONDENT
RULING
This is an application Under Section 15 and 18 of CPA seeking for an Order to transfer Principal Magistrate Court (MILIMANI) No.6016 OF 2004 from that Court to Kisii Magistrate’s Court. Court was told that the cause of action arose in Kisii Town.
The defendant and 3rd parties live in Kisii Town and the suit should have been filled before Kisii Principal Magistrate Court.
I have considered the application, affidavit in support and the annextures.
It is clear that the cause of action arose in Kisii. Annextures “JSAS3” a delivery Note shows that m/v Reg.No.KAG. 475X was delivered to the respondent in Kisii.
The Applicant’s main office are in Kisii though he is said to have a branch office in Nairobi. Kisii Bottlers the 3rd Party is based in Kisii Town. S.15 of CPA clearly states that a suit should be filed in a court within the local limits of whose jurisdiction the defendant resides. The applicant has deponed that it is based in Kisii Town. The cause of action arose with Kisii Town. The suit should therefore have been filed before the Kisii Senior Principal Magistrates Court.
S.18 CPA grants High Court powers to Order for transfer of cases.
I therefore grant the application and Order that the case be transferred forthwith to Kisii Senior Principal Court for hearing and disposal. Costs in the cause.
Dated at Kisii this 28th day of April 2005 KABURU BAUNI JUDGE Mr. Nyachae for Mr. Ochillo for Applicant. KABURU BAUNI JUDGE