[2018] KEHC 8149 (KLR)
The court found that both the applicant and respondent reside in Mutomo, and that the suit ought to have been instituted in the court of the lowest grade competent to hear it, namely the Mutomo Senior Principal Magistrate's Court. The respondent did not oppose the application, and there was no evidence of prejudice...
Source-derived case information.
- Citation
- [2018] KEHC 8149 (KLR)
- Parties
- Applicant: Catherine Ngina Ngelu; Respondent: Mutuku Kasoa
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 66 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application allowed
- Judges
- LN Mutende
- Legal Topics
- Transfer of Suit, Jurisdiction, Venue of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Ngina Ngelu
Applicant
Mutuku Kasoa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from Kitui Chief Magistrate's Court to Mutomo Senior Principal Magistrate's Court for trial and disposal.
- 2 Whether the transfer would cause prejudice to the respondent or undue hardship to the applicant.
Ratio Decidendi
The court found that both the applicant and respondent reside in Mutomo, and that the suit ought to have been instituted in the court of the lowest grade competent to hear it, namely the Mutomo Senior Principal Magistrate's Court. The respondent did not oppose the application, and there was no evidence of prejudice to the respondent. The court exercised its discretion under Section 18(1)(a) of the Civil Procedure Act to transfer the suit from Kitui Chief Magistrate's Court to Mutomo Senior Principal Magistrate's Court for trial and disposal, holding that this would serve the interests of justice and convenience for both parties.
Court Disposition
application allowed
Orders
- Kitui Chief Magistrate’s Civil Suit No. 520 of 2016 is transferred to Mutomo Senior Principal Magistrate’s Court for trial and disposal.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CIVIL MISC. APPLICATION NO. 66 OF 2017
CATHERINE NGINA NGELU.........................APPLICANT
VERSUS
MUTUKU KASOA..........................................RESPONDENT
R U L I N G
1. In the application dated the 3rdday of October, 2017the Applicant, Catherine Ngina Ngeluseeks this Courts order transferring Civil Suit No. 520 of 2016from Kitui Chief Magistrate’s Court to Mutomo Senior Principal Magistrate’s Court for trial and disposal.
2. The application is premised on grounds that both the Applicant and Respondent reside at Mathima Locationwithin Mutomo Sub-county;it would cause great inconvenience, hardship and expense to the Applicant if the suit is heard in Kitui which is approximately 90 kilometresfrom Mutomo Area; the Respondent shall not be prejudiced by the order sought.
3. Counsel for the Applicant Mr. Erick M. Keliswore an affidavit in support of the Application where he deposed that the Applicant had instructed her former Advocate to file the case at Mutomo Law Courts but she was surprised to find that it was filed at Kitui Law Courts which will cause her great inconvenience, economic hardship and expense as both of them are domiciled in Mutomo.
4. The Respondent who was duly served with the application failed and/or neglected to file a response. Therefore the averments of the Applicant stand unchallenged.
5. The suit herein ought to have been instituted in a Court of the lowest grade competent to hear it. (See Section 11 of the Civil Procedure Act).Both the Defendant and Plaintiff reside in Mutomo. Therefore the Court best placed to try them is Mutomo Senior Principal Magistrate’s Court.
6. Section 18(1)(a)of the Civil Procedure Actprovides thus:
“(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or.”
The Court at Mutomo is competent to try the suit, therefore I allow the Applicant’s application and direct as follows:
I. Kitui Chief Magistrate’s Civil Suit No. 520 of 2016be and is hereby transferred to Mutomo Senior Principal Magistrate’s Court, for trial and disposal.
II. Costs of the application shall be in the cause.
7. It is so ordered.
Dated, Signedand Deliveredat Kituithis 27thday of February,2018.
L. N. MUTENDE
JUDGE