[2004] KEHC 431 (KLR)
The court found that Kangundo Resident Magistrate’s Court did not have territorial or pecuniary jurisdiction to entertain the suit, as both the defendants resided in Murang’a and the cause of action arose within the jurisdiction of Murang’a court. The applicant failed to provide any reason for filing the suit in...
Source-derived case information.
- Citation
- [2004] KEHC 431 (KLR)
- Parties
- Applicant: Beatrice Njeri Muriuki; Respondent: Joseph W. Ndirangu; Respondent: Epraim Wahome
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 192 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed with costs to applicant
- Legal Topics
- Transfer of Suits, Territorial Jurisdiction, Pecuniary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Beatrice Njeri Muriuki
Applicant
Joseph W. Ndirangu
Respondent
Epraim Wahome
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the High Court should transfer SRMCC 515/99 from Kangundo to Murang'a Resident Magistrate's Court.
- 2 Whether Kangundo Resident Magistrate's Court had jurisdiction to entertain the suit.
- 3 Whether a suit filed in a court without jurisdiction can be transferred to a court with jurisdiction.
Ratio Decidendi
The court found that Kangundo Resident Magistrate’s Court did not have territorial or pecuniary jurisdiction to entertain the suit, as both the defendants resided in Murang’a and the cause of action arose within the jurisdiction of Murang’a court. The applicant failed to provide any reason for filing the suit in Kangundo, which was outside the appropriate territorial jurisdiction. Since jurisdiction is fundamental, and Kangundo court lacked it, there was no valid suit before Kangundo court capable of being transferred to Murang’a court. The High Court cannot transfer a suit that was improperly instituted in a court without jurisdiction. The application to transfer the suit was therefore...
Court Disposition
application dismissed with costs to applicant
Orders
- The application to transfer SRMCC 515/99 from Kangundo to Murang’a Resident Magistrate’s Court is dismissed.
- Costs to be borne by the applicant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISCELLENEOUS APPLICATION NO. 192 OF 2003
BEATRICE NJERI MURIUKI…..............................….PLAINTIFF/APPLICANT
VERSUS
JOSEPH W. NDIRANGU &
EPRAIM WAHOME………...........................…..DEFENDANT/RESPONDENT
R U L I N G
The appellant seeks to have this court order that SRMCC 515/99 filed at SRMS court Kangundo be transferred to Resident Magistrate’s court Murang’a for hearing and disposal. The application is brought under order L Rule 1 CPR, sections 15 (a) and (c); section 18 (b) and section 3A Civil Procedure Act. The applicant also prays that costs be in the cause.
The grounds upon which the application is brought are that the Resident Magistrate’s court Murang’a has pecuniary and territorial jurisdiction to hear the case, the witnesses reside and work in Murang’a the cause of action arose along Karatina-Sagana road which is within the local limits of Resident Magistrate’s court Murang’a and that it will be easy for the parties to attend and defendant will suffer no prejudice.
The defendant/respondent was not served with the present application as the applicant says that there is already interlocutory judgement entered against the defendants who failed to enter appearance or defence in that case and the application is therefore brought exparte. They annexed a return of service (PM2) which the court has looked at. Even if the court is not dealing with the case before the lower court, my observation is that 2nd defendant was never served. It is doubtful whether 1st defendant was ever served as the exact mode of service is not indicated, time of service is not indicated nor is the secretary who allegedly pointed out the 2nd defendant identified. It is an observation for the lower court and I will leave it at that.
Going back to the application before me, I will look at the sections under which the application is preferred. Section 15(1)(a) provides that a suit of this nature shall be instituted within the local limits of whose jurisdiction the defendant resides or carries on business or works for gain or where any of the defendants resides works or carry on business or 15(c) where the cause of action wholly or in part arises. In the present case, the 1st defendant is said to reside at Murang’a and so does the 2nd defendant. It is also conceded by applicant and also pleaded at para 5 of the annexed plaint PM(1) that the cause of action which is a road accident occurred on Sagana- Karatina road which is actually within the local limits of Resident Magistrate’s court Murang’a. Right from the on set the court with jurisdiction in this matter was Murang’a Resident Magistrate’s court. The applicant has not told the court how it came to be that the matter was filed in Kangundo court. Even if it were to be said there was confusion as to which court to go to the other courts that plaintiff would have filed the case in Thika court, Nyeri or Embu. Kangundo Resident Magistrate’s court was quite out of the way for the plaintiffs. Section 18(b) gives the High Court wide discretion to transfer suits from one court to another for hearing and disposal. This discretion has however to be exercised judiciously and for good reason.
Kangundo court did not have jurisdiction to entertain the case in the first place no reason has been given why the plaintiff had to go all the way to Kangundo to file their case. There is a reason why we have territorial and local jurisdictions for courts, to avoid congestion and also so that parties will not go shopping for favourable courts in which to file their cases. The issue of jurisdiction goes to the root of the case. If Kangundo court had no jurisdiction to entertain this matter, it follows that there is no suit before Kangundo court capable of being transferred to Murang’a court. The plaintiff will have to contend with their choice to have the suit filed in Kangundo.
The application has no merit it is dismissed with costs being borne by applicant.
Dated, read and delivered at Machakos this……………………..day of…………………………..,2004.
R. WENDOH
JUDGE