[2015] KEHC 3173 (KLR)
The court held that since the suit was filed in a court without territorial jurisdiction, it was a nullity ab initio and there was no competent matter to transfer. The High Court's discretion to transfer suits does not extend to suits that are incompetent from the outset due to lack of jurisdiction. Therefore, the...
Source-derived case information.
- Citation
- [2015] KEHC 3173 (KLR)
- Parties
- Applicant: Allan Fwamba Malilo; Respondent: Tai Construction Co. Ltd
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 39 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit for Lack of Territorial Jurisdiction
- Outcome
- application dismissed
- Legal Topics
- Transfer of Suits, Territorial Jurisdiction, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Fwamba Malilo
Applicant
Tai Construction Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit for Lack of Territorial Jurisdiction
Legal Issues
- 1 Whether the High Court can transfer a suit filed in a court lacking territorial jurisdiction to a competent court.
- 2 Whether the suit before the Chief Magistrate's Court, Bungoma, was a nullity ab initio due to lack of jurisdiction.
Ratio Decidendi
The court held that since the suit was filed in a court without territorial jurisdiction, it was a nullity ab initio and there was no competent matter to transfer. The High Court's discretion to transfer suits does not extend to suits that are incompetent from the outset due to lack of jurisdiction. Therefore, the application to transfer the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application to transfer Bungoma CMCC No. 138 of 2010 to Kakamega Law Court is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION CASE NO. 39 OF 2014
ALLAN FWAMBA MALILO........................…............................................ APPLICANT
VERSUS
TAI CONSTRUCTION CO. LTD............................................................ RESPONDENT
RULING
1. Before court is an application dated 9th April 2014 seeking to transfer Bungoma CMCC no. 138 of 2010 to Kakamega Law Court for hearing and determination on the grounds that the Bungoma Chief Magistrate's Court has no territorial jurisdiction as the action arose in Kakamega.The application was supported by the affidavit of Allan Fwamba Malilo the applicant.
2. The facts of the matter are that by a plaint dated 19th February 2010 the applicant filed suit in Bungoma Chief Magistrate's Court against Tai Construction Company Limited , the defendant therein, claiming damages arising from an accident along Kakamega road. A defence was filed which inter alia took issue with the court's jurisdiction.
3. At the hearing of the application only the applicant’s counsel appeared. However an affidavit of service was filed indicating that the application herein was duly served upon the respondent.
4. The only issue for determination herein is whether or not this suit is transferable? In arguing for the orders being sought counsel for the applicant gave the sole reason for the transfer as being lack of territorial jurisdiction by the Chief Magistrate's Court, Bungoma as the cause of action arose in Kakamega.
5. There are several authorities on this matter and the same is by now settled law. The High Court no doubt has wide powers to transfer suits to courts that have territorial and pecuniary jurisdiction under Section 18 of the Civil Procedure Act. Notably if the case to be transferred is competent in the first place.
Ringera J (as he then was) addressed an issue a similar issue to the one before this court. In the case of Omwoyo Vs. AfricanHighlands and Produce Co. Ltd. [2002] l at 199where he stated;
“That being the case, the sole issue for determination is whether this court has jurisdiction to transfer a suit from a court which is seized if it has no jurisdiction to determine it to a court vested with jurisdiction.”
“The Principle of Law to be gleaned …..... is that the High Court cannot exercise its discretion to transfer a suit from one court to another if the suit is filed in the first place in a court which does not have pecuniary and/or territorial jurisdiction to try it.”
6. Guided accordingly I am of the view that there is no matter to be transferred as the suit before the Chief Magistrate's Court, Bungoma was a nullity abnitio. The court had no territorial jurisdiction.
In the circumstances the application is dismissed. I make no order as to costs.
Dated at Bungoma this 2nd day of July 2015.
ALI-ARONI
JUDGE.