[2004] KEHC 2593 (KLR)
The High Court found that Bungoma S.P.M.C.C.C. No. 186 of 1998 had already been heard and finally determined by the magistrate's court, and that the judgment had not been set aside, reviewed, or varied. Section 18 of the Civil Procedure Act does not contemplate the transfer of a suit that has been concluded by...
Source-derived case information.
- Citation
- [2004] KEHC 2593 (KLR)
- Parties
- Applicant: Naibei Chekuro and four others; Respondent: Wekesa Erapa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 22 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Transfer Suit
- Outcome
- motion dismissed with costs to the respondent
- Legal Topics
- Transfer of Suit, Jurisdiction of Magistrate Court, Consolidation of Suits, Allegations of Bias, Finality of Judgment
- 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
Naibei Chekuro and four others
Applicant
Wekesa Erapa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion to Transfer Suit
Legal Issues
- 1 Whether the High Court has jurisdiction under Section 18 of the Civil Procedure Act to transfer a suit that has already been heard and determined by the magistrate's court.
- 2 Whether the applicants have demonstrated sufficient grounds, including bias or lack of jurisdiction, to warrant the transfer and consolidation of the suit.
Ratio Decidendi
The High Court found that Bungoma S.P.M.C.C.C. No. 186 of 1998 had already been heard and finally determined by the magistrate's court, and that the judgment had not been set aside, reviewed, or varied. Section 18 of the Civil Procedure Act does not contemplate the transfer of a suit that has been concluded by judgment. The court held that it lacked jurisdiction to transfer a judgment, as there was nothing left to be heard or determined. The applicants' allegations of bias were unsubstantiated and should have been raised before the trial court. Consequently, the application was found to be frivolous, vexatious, and without merit, and was dismissed with costs to the respondent.
Court Disposition
motion dismissed with costs to the respondent
Orders
- The motion to transfer Bungoma S.P.M.C.C.C. No. 186 of 1998 to the High Court is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CIVIL MISC CAUSE NO. 22 OF 2004
NAIBEI CHEKURO
AND FOUR OTHERS ……………. APPLICANT
VS
WEKESA ERAPA …………… RESPONDENT
R U L I N G
This is a motion instituted under Section 18 of the Civil Procedure Act. The applicant seeks to have BUNGOMA S.P.M.C.C.C. No. 186 of 1998 transferred to this court for hearing and final determination. The motion is supported by the affidavit of Julius Sawenja Khakula sworn on 2nd February 2004.
The applicants argued that the aforesaid suit involves Land Parcel No. ELGON/CHEMOGE/493 measuring about 5 hectares which is valued at Ksh.1,250,000 which is stated to be beyond the jurisdiction of the magistrate’s court. It is also stated that there is a pending H.C.C.C. No 168 of 2000 before this court which involves the same parcel of Land. The applicants urged this court to withdraw the suit before the Senior Principal Magistrate’s court and have it consolidated with Bungoma H.C.C.C. No. 168 of 2000.
The applicants further complained that the Senior Principal Magistrate was biased in favour of the Respondent hence they are apprehensive that they will not get justice unless that suit is transferred to this court for hearing and disposal. It is alleged that the lower court delayed in delivering a ruling for stay of execution and setting aside orders which were adverse making them vulnerable to police harassment on a purported mission to enforce eviction orders which are said to have been given prematurely. The Respondent opposed the motion by filing a replying affidavit sworn by Simiyu Makokha, the Respondent’s Advocate. The main ground raised in opposition is that the suit which is being sought to be transferred has been heard and determined by the Senior Principal Magistrate. The Respondent therefore viewed the motion as frivolous, vexatious and unmeritorious. It is further averred that there exists a lawful decree that has never been set aside, reviewed and or varied in any way.
The Respondent pointed out that the applicants have not shown how the trial court was biased. It was further argued that even if there was evidence of bias on the part of the trial court, it was incumbent upon the applicants to make an application for that court to disqualify itself.
I have considered the submissions of both sides. What is succinctly clear is that Bungoma S.P.M.C.C.C. No. 186 of 1998 has been heard and finally determined by the lower court. In fact the applicants annexed copies of the proceedings and Judgment to the affidavit of Julius Khakula. It is not denied that the Judgment has not been set aside: The law under section 18 of the Civil Procedure Act did not envisage a suit which has been heard and determined to be transferred. I think I have no jurisdiction to transfer a Judgment. There is nothing to be heard and to determine. I am in agreement with the submissions of Mr. Barasa who appeared for the Respondent that the motion is frivolous, and vexation and unmeritorious.
The upshot therefore is that the motion is ordered dismissed with costs to the Respondent.
READ AND DELIVERED THIS 26th DAY OF March 2004.
J.K.SERGON
JUDGE