[2005] KEHC 655 (KLR)
The court held that although the plaintiff sought transfer for its own convenience, the proper considerations are the location of the cause of action and the residence or business location of the defendants. The cause of action arose near Athi-River, within the jurisdiction of the Chief Magistrate’s Court at...
Source-derived case information.
- Citation
- [2005] KEHC 655 (KLR)
- Parties
- Plaintiff: Athi Stores Ltd.; Defendant: Kenya Agricultural Research Institute; Defendant: Eliud Muhis Gichuki
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 196 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Transfer of Suit
- Outcome
- Application for transfer of suit allowed.
- Legal Topics
- Transfer of Suit, Jurisdiction, Pecuniary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Athi Stores Ltd.
Plaintiff
Kenya Agricultural Research Institute
Defendant
Eliud Muhis Gichuki
Defendant
Procedural Posture
Civil Case / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred to the Chief Magistrate’s Court, Milimani, for hearing and determination.
- 2 Whether the Chief Magistrate’s Court, Milimani, has jurisdiction to hear the matter.
- 3 Whether the convenience of the plaintiff is a proper consideration for transfer of suit.
Ratio Decidendi
The court held that although the plaintiff sought transfer for its own convenience, the proper considerations are the location of the cause of action and the residence or business location of the defendants. The cause of action arose near Athi-River, within the jurisdiction of the Chief Magistrate’s Court at Machakos. However, since the first defendant’s registered office and the second defendant’s place of work are in Nairobi, the suit could have been filed in either Nairobi or Machakos. The court found that both courts had jurisdiction and, therefore, allowed the transfer of the suit to the Chief Magistrate’s Court, Milimani, Nairobi, for hearing and disposal.
Court Disposition
Application for transfer of suit allowed.
Orders
- The suit is transferred to the Chief Magistrate’s Court, Milimani, for hearing and determination.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case 196 of 1996
ATHI STORES LTD. ………………..….………………………………… PLAINTIFF
VERSUS
KENYA AGRICULTURAL RESEARCH INSTITUTE
ELIUD MUHIS GICHUKI ……………………………..…………….. DEFENDANTS
R U L I N G
The plaintiff/applicant seeks an order of transfer of this suit to the Chief Magistrate’s Court, Milimani, for hearing and determination and that the costs be in the cause. The reasons for the transfer are that the Chief Magistrate’s Court, Milimani, has the pecuniary jurisdiction which it did not have at the time the suit was filed; that the plaintiff conducts business in Nairobi and so, that court has jurisdiction; that the matter will be heard and determined fast. The application is also supported by the affidavit of Virginia Shaw, counsel for the applicant.
Though served with the application and Hearing Notice, the Respondents never filed any papers in opposition to this application nor did they attend the hearing. The hearing proceeded ex parte.
Under Section 15, Civil Procedure Act, the plaintiff has to file a suit in a court within the local limits of whose jurisdiction the defendant or each of the defendants at the time of commencement of the suit, actually or voluntarily resides or carries on business or unless with the leave of the court a suit can be filed in another court or where the cause of action wholly or in part arises. In this case, the plaintiff is suggesting that the suit be moved to Chief Magistrate’s Court, Milimani, to the plaintiff’s convenience which is not the proper consideration.
From the plaint, it is apparent that the cause of action arose near Athi- River. I believe that the cause of action arose within the local limits of Chief Magistrate’s Court at Machakos. However, at paragraph 3 of the plaint, it is pleaded that the 2nd defendant works in Nairobi and the 1st Defendant has its registered office in Nairobi too. It means that this suit could either have been filed in Nairobi or Machakos. Before this court can order the transfer of a suit from one court to another, it has to be established that the court in which the suit was filed had jurisdiction to try it in the first place. This court has unlimited jurisdiction and the case could also have been filed at Chief Magistrate’s Court, Machakos, which has jurisdiction but since the first defendant’s offices are in Nairobi, and 2nd defendant works in Nairobi, the suit can be transferred to Milimani Chief Magistrate’s Court for hearing and disposal and the court so orders.
Costs to be in the cause.
R.V. WENDOH
JUDGE
Dated at Machakos this 17th day of August 2005
Read and delivered in the presence of
R.V. WENDOH
JUDGE