[2004] KEHC 1416 (KLR)
The court found that the authorities cited by the respondent were distinguishable, as the issue in Kagenyi concerned pecuniary jurisdiction, not geographical, and the Manadu Kitonga case involved an appeal after dismissal for want of jurisdiction, not a pre-hearing transfer. The court held that transferring the suit...
Source-derived case information.
- Citation
- [2004] KEHC 1416 (KLR)
- Parties
- Plaintiff: Diyo Nyamawi Diyo; Defendant: Kennedy Ragiri Isoe
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 19 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application for transfer allowed; costs awarded to defendant.
- Legal Topics
- Transfer of Suits, Jurisdiction, Venue, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diyo Nyamawi Diyo
Plaintiff
Kennedy Ragiri Isoe
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Mombasa court had jurisdiction to hear the suit for purposes of transfer.
- 2 Whether the suit should be transferred to the Senior Resident Magistrate’s Court at Kwale for hearing and final disposal.
- 3 Whether costs should be awarded to the defendant due to the plaintiff's filing error.
Ratio Decidendi
The court found that the authorities cited by the respondent were distinguishable, as the issue in Kagenyi concerned pecuniary jurisdiction, not geographical, and the Manadu Kitonga case involved an appeal after dismissal for want of jurisdiction, not a pre-hearing transfer. The court held that transferring the suit to Kwale, where the parties and witnesses reside, would not prejudice the defendant and would save inconvenience and costs. The application for transfer was therefore allowed, but the plaintiff was ordered to pay the costs of the application due to the admitted filing error by counsel.
Court Disposition
Application for transfer allowed; costs awarded to defendant.
Orders
- The suit is transferred to the Senior Resident Magistrate’s Court at Kwale for hearing and final disposal.
- The plaintiff shall pay the costs of this application to the defendant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL SUIT NO. 19 OF 2004
DIYO NYAMAWI DIYO ……………………………. PLAINTIFF
Versus
KENNEDY RAGIRI ISOE …………………………… DEFENDANT
R U L I N G
The accident giving rise to Mombasa CMCC No. 3524 of 2003 occurred at Msambweni in Kwale District. The parties to that suit also reside in Kwale District. By a Notice of Motion brought under sections 3A, 15 and 18 of the Civil Procedure Act the plaintiff in that case has applied that the case be transferred to the Senior Resident Magistrate’s Court at Kwale for hearing and final disposal. In the supporting affidavit sworn by Mr. Joseph Karanja Kanyi, Counsel for the plaintiff, it is deposed that the suit was filed at Mombasa by mistake of counsel’s office.
The application is opposed. Mr. Okongo for the defendant argued that for a case to be transferred from one court to another it must be established that the court in which the case was filed had jurisdiction to hear it. For this proposition he relied on the Ugandan case of Kagenyi =Vs= Musiramo & Another [1968] E.A. 43. In this case although the Mombasa Court has pecuniary jurisdiction, he submitted, it does not have the geographical jurisdiction. Contrary to the submissions by Mr. Adoch for the applicant the country wide jurisdiction given to Magistrates by section 3(2) of the Magistrate’s Court Act Cap 10 of the Laws of Kenya is merely for administrative purposes to facilitate the transfers of Resident Magistrates without each time publishing their jurisdiction in the Kenya Gazette. Relying on the authority in the case of Manadu Kitonga =Vs= Salim Nairobi HCC Appeal No. 2 of 1976Mr. Okongo argued that the Mombasa court has no geographical jurisdiction and the application should therefore be dismissed.
I have considered the rival submissions by counsel for the parties and the authorities cited in particular theUgandan case of Kagenyi. In that case the aspect of jurisdiction in issue was pecuniary which is not the case here. In any case that authority is not binding on me. It is only persuasive. In the case ofManadu Kitonga Justice Miller was hearing an appeal from the Resident Magistrate’s court at Thika which had dismissed the suit for want of geographical jurisdiction. What we have here is an application for transfer of a suit from one court to another before it is heard.
In the circumstances the two authorities are clearly distinguishable. As the parties and I presume their witnesses reside in Kwale district no prejudice will be caused to the defendant if this case is transferred there for hearing and final disposal. To the contrary it will save the parties great inconvenience and costs if the case is transferred. For these reasons I allow this application but order the plaintiff to pay the costs of the application to the defendant because on his advocate’s admission the case was filed in Mombasa by mistake.
DATED this 3rd day of March 2004.
D.K. Maraga
Ag. JUDGE