[2004] KEHC 1645 (KLR)
The High Court dismissed the application on the basis that it cannot transfer a suit from a lower court that lacks jurisdiction to entertain the matter in the first place. The court relied on established jurisprudence that an order for transfer can only be made if the suit was initially filed in a court with...
Source-derived case information.
- Citation
- [2004] KEHC 1645 (KLR)
- Parties
- Applicant: Amin Mohamed A.H. Mohamed; Respondent: Magan M. Chandaria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 867 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Legal Topics
- Transfer of Suits, Jurisdiction, Trust Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amin Mohamed A.H. Mohamed
Applicant
Magan M. Chandaria
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the High Court can transfer a suit from the Senior Principal Magistrate’s Court where the lower court lacks jurisdiction to entertain the matter.
- 2 Whether the claim involving trust property should be heard exclusively by the High Court under the Trustee Act.
Ratio Decidendi
The High Court dismissed the application on the basis that it cannot transfer a suit from a lower court that lacks jurisdiction to entertain the matter in the first place. The court relied on established jurisprudence that an order for transfer can only be made if the suit was initially filed in a court with jurisdiction. Since the subject matter involved trust property, which falls exclusively under the jurisdiction of the High Court as per the Trustee Act, the Senior Resident Magistrate’s Court had no jurisdiction, and thus the application for transfer was incompetent and could not be granted.
Court Disposition
application dismissed
Orders
- The application dated 25th August 2003 is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA MILIMANI COMMERCIAL COURTS
MISC. APPLICATION 867 OF 2003AMIN MOHAMED A.H. MOHAMED …………..PLAINTIFFVERSUSMAGAN M. CHANDARIA…..……………….DEFENDANTRULING
The present application dated 25th August 2003 is brought by the Plaintiff seeking to transfer the suit SPMCC No 5088 of 2003 from the Senior Principal Magistrate’s court to be tried and disposed by this court.
The application is brought under section 18 of the Civil Procedure Act.
The application is brought under the ground that the plaintiff’s claim touches on the issue of Trust Property and Section 2 of the Trustee Act Cap 167 defines a court as the High Court or a Judge thereof.
It is evident from the submissions by the applicant’s counsel and from the affidavit in support that the suit being sought to be transferred to the High Court was filed in the Senior Resident Magistrate’s Court which has no jurisdiction to entertain or determine it. The jurisprudence of the cases KAGENYI V MISIRAMO & ANOTHER (1968 ) E.A. 48 and MENDONCA V RODRIGUES (1906 – 1908) 2 KLR,is that the High Court did not have power to order transfer of a suit on the ground of want of jurisdiction alone; in other words an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first place brought to a court which has jurisdiction to try it. That clearly is the case in this matter in that the matter being under the Trustee Act cannot be entertained in the Senior Resident Magistrate’s Court. The application for the reason stated herein fails.
The application dated 25th August 2003 is dismissed with no orders as to costs.
Dated and Delivered this 22nd day of September 2004.
MARY KASANGO
AG JUDGE