[2004] KEHC 842 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMABSA

CIVIL CASE NO. 155 OF 2004

EDWARD BUTI WABUTI ….……………………………………… 1ST PLAINTIFF

GEOFFREY A. MAIKURI ………………………………………… 2ND PLAINTIFF

- V E R S U S –

JOSEPH KARIANJA NDUNGU ………………………………….. 1ST DEFENDANT

LINEAR COACH CO. LTD. ……………………………………… 2ND DEFENDANT

R U L I N G

On 18. 6.2004 the plaintiffs through their advocates M/s. Timamy & Co. advocates of Mombasa filed this suit in the High Court Mombasa. The Plaintiffs are described as residing in Keroka in the Republic of Kenya. The defendants - the driver and employee of second defendant a limited liability Company are described as carrying on passenger transport business operating in Kisii, Nairobi and Mombasa. The cause of action is said to have arisen in Keumbu Shopping Centre in Kisii District.

The defendants have entered appearance and have filed statement of defence through their advocates based in Kisii. On first day of September, 2004 the defendants filed this Notice of Motion under provisions of Section 15 (b) and 3 A of Civil Procedure Act seeking the transfer of this suit to High Court Kisii. He has set out grounds that:-

the cause of action arose in Kisii and there is a High Court and that registered office of 2nd defendant is in Kisii and the witness to be called are in Kisii and that it would be expensive to try this suit in Mombasa and that practice demands that it be transferred to Kisii and that it would be against the principal of natural justice for a party to file suit in a court of his own choice.

In opposition the plaintiff states that there is no jurisdiction for High court to transfer High Court cases and that the provision of law invoked does not empower court to transfer cases. Section 3A is not applicable, the defendants ordinarily do business in Mombasa. It is the plaintiff who has prerogative as to the place of suing.

Section 15 (b) Civil Procedure Code provided that every suit shall be instituted in a court within the local limits of whose jurisdiction

(b) any of the defendants at the time of commencement of the suit actually and voluntarily resides or personally carries on business or personally works for gain. The proviso is not applicable since the two defendants are Employer and Employee.

Authorities have been referred to here. In the appeal court case of Mohamed Din Sheban–vs- Ahmed Bin Mohamed Civil Appeal no. 16/1908 the issue was the transfer of a suit concerning land from court of Liwali to that of District Commissioner both being of concurrent jurisdiction. The court said in that case the plaintiff had a right of choice of the court. This court said in that case the plaintiff had a right of choice of the court. And that the power to transfer is in the High Court but this authority is not relevant here, the two courts were in the same local limits and were dealing with land and Civil Procedure Act Section 12 sets out the courts to hear suits of immoveable property.

In Wanjiku –vs- Esso Kenya Limited the Court of Appeal was dealing with inherent powers of court and said:-

“The inherent jurisdiction of court is a residual jurisdiction which should only be exercised in special circumstances in order to put right that which would otherwise be a clear injustice .

The case of Mobil Oil Kenya Ltd –vs- Alfred Obuya Michura at Milimani Court Nairobi HCC. NO. 716 of 2001 was also referred to by Counsel. I find this case interesting. It brings out the provisions of Order XLVI Civil Procedure Rules which establishes High Court Registries with Nairobi being the Central Office. District registries are also established. There is an established district registry at Kisii and another in Mombasa among others. The order provides that every suit shall be tried in such place as the court may direct and in the absence of such direction shall be tried in the District Registry within the area where they are instituted. If the court should order that the trial of a suit take place in a particular place the court shall have regard to the convenience of the parties and of their witnesses and all other circumstances of the case. One might argue that Order 46 is only subsidiary legislature and cannot override the provisions of the Act. However Rule 4 provide that suits filed in a registry where defendant resides or carried on business “shall be taken in such registry ”.This is in conformity with provisions of Section 15 of the Act. (Cap.21).

The circumstances of this case are that the cause of action arose in Keroka under Kisii district registry. The second defendant is a corporation and is said to be carrying on business in Mombasa and for the purpose of the corporation is said to have its principal place of business in Kisii- Mombasa being only a subordinate office. The applicant states that his witnesses are in Kisii and it will be expensive to transport them to Mombasa Court. After considering the circumstances of this case and the said provisions it is clear that the convenience of the defendant is to be considered. The plaintiff has choice of place of suing under Section 14 of Act and that is not the case here. It is my view that the trial of this case is likely to be delayed by being tried in Mombasa Court. And that it is in the interest of justice that this suit be transferred to Kisii District Registry for trial and determination by High Court sitting in that District Registry’s area. Application is therefore allowed orders granted as prayed. Costs shall be in the cause. Dated this 18th day of November, 2004

J. KHAMINWA

JUDGE

18. 11. 2004

Khaminwa – Judge

Cege – Court clerk

Mr. Buti

Ruling read in court.

Mr. Buti – I apply for leave to appeal. Leave granted.

J. KHAMINWA

JUDGE