[2023] KEHC 25708 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the transfer of the suit to Kitui, as both parties reside in Kitui and the subject properties are located there. The court held that requiring the applicant to prosecute the matter in Nairobi would impose unnecessary inconvenience and costs,...
Source-derived case information.
- Citation
- [2023] KEHC 25708 (KLR)
- Parties
- Applicant: EMD; Respondent: DK
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Originating Summons E020 of 2023
- Procedural Posture
- Originating Summons / Ruling on Application for Transfer of Suit
- Outcome
- application allowed
- Judges
- PM Nyaundi
- Legal Topics
- Matrimonial Property, Transfer of Suit, Jurisdiction, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EMD
Applicant
DK
Respondent
Procedural Posture
Originating Summons / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the matter should be transferred to Kitui High Court for hearing and determination.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the transfer of the suit to Kitui, as both parties reside in Kitui and the subject properties are located there. The court held that requiring the applicant to prosecute the matter in Nairobi would impose unnecessary inconvenience and costs, and that the respondent had not shown any prejudice she would suffer from the transfer. The court emphasized that access to justice includes physical access to courts, as enshrined in Article 48 of the Constitution. Consequently, the court allowed the application for transfer, finding that the criteria for transfer had been met and that no exceptional hardship needed to be...
Court Disposition
application allowed
Orders
- The file is to be transferred to Kitui High Court for hearing and determination.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
EMD v DK (Originating Summons E020 of 2023) [2023] KEHC 25708 (KLR) (Family) (10 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25708 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Originating Summons E020 of 2023
PM Nyaundi, J
November 10, 2023
IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT,2013
Between
EMD
Applicant
and
DK
Respondent
Ruling
Introduction 1. The Application for determination is Notice of Motion dated 19th July 2023 in which the Applicant seeks for orders transferring this matter to the High Court at Kitui for hearing and determination.
2. The grounds on which the orders are sought are that the parties are resident in Kitui and the subject properties are all situated in Mwingi, Kitui County.
3. The Application is supported by the Affidavit of the Applicant sworn on 19th July 2023. The Applicant avers that the Respondent is herself serving as a Village Administrator at Kisama Village and it will be to the convenience of both parties if the matter is heard in Kitui.
4. It is stated that having the matter in Nairobi will inconvenience the Applicant and his witnesses and will compel him to bear additional costs which can be avoided if the matter is heard in Kitui.
5. The Respondent opposes the Application and has sworn an affidavit on 20th July 2023. She disputes that she is stationed in Mwingi and avers that she travels quite a bit and is often in Nairobi.
6. She contends that transferring the matter to Kitui would occasion delay in determining the matter.
7. The Court directed that the Application be canvassed by written submissions. The Respondents submissions are dated 19th October 2023.
8. The Respondent submits that the jurisdiction of the Court to transfer suits is set out under Section 18 as read with Section 11, 12 and 15 of the Civil Procedure Act. The Respondent relies on the decisions in David Kabungu- v- Zikamunga & 4 Others HCCC No. 36 of 1996 (Ugandan Decision); Hangzhou Agrochemicals Industries Ltd- Vs Panda Flowers Ltd [2012] eKLR to support her contention that the Applicant has not laid a sufficient basis for the transfer of the matter to Kitui.
9. I have considered the pleadings and submissions filed herein and discern the following as the issues for determinationa.Whether the matter should be transferred to Kituib.Who should pay the costs of the suit
10. In his affidavit the Applicant states he resides in Kitui. Further the property in dispute is situate in Mwingi. He submits that in the event that the matter proceeds by viva voce evidence it will be expensive for him to meet the witness expenses in transporting them to Nairobi. That there is a court of competent jurisdiction in Kitui and the Respondent has not demonstrated any prejudice she will suffer if the matter is transferred to Kitui.
11. Based on the above I am satisfied that the Applicant has satisfied the criteria set out Hangzhou Agrochemicals Industries Ltd- Vs Panda Flowers Ltd [2012] eKLR I do not think that the Applicant has to demonstrate that he is on his knees and bleeding for the Court to allow for transfer. It is sufficient for him to demonstrate, as he has, that if the matter were to be heard in Nairobi he would be compelled to stretch an extra mile and no basis has been laid as to why he should.
12. Indeed Article 48 of the Constitution of Kenya recognizes the right to access to justice, which includes physical access to courts.
13. For this reason, I allow the Application with no order as to costs
14. The file will be transferred to Kitui High Court for hearing and determination
It is so ordered
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Muigai for the Respondent/Applicant