[2006] KEHC 3070 (KLR)
The court found that the defendant resides in Cheptais and the cause of action arose within the local limits of Bungoma High Court. Section 15 of the Civil Procedure Act mandates that suits be instituted where the defendant resides or where the cause of action arises. The court held that the defendant's application...
Source-derived case information.
- Citation
- [2006] KEHC 3070 (KLR)
- Parties
- Plaintiff: Eng. Jonas John Myoya t/a Myomuwe Construction Co.; Defendant: Cheptais Farmers Co-Operative Society Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 626 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Transfer of Suit
- Outcome
- Application for transfer of suit granted.
- Legal Topics
- Transfer of Suit, Jurisdiction, Venue, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eng. Jonas John Myoya t/a Myomuwe Construction Co.
Plaintiff
Cheptais Farmers Co-Operative Society Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred to Bungoma High Court in accordance with section 15 of the Civil Procedure Act.
- 2 Whether quoting the wrong provision of the Civil Procedure Rules invalidates the defendant's application.
Ratio Decidendi
The court found that the defendant resides in Cheptais and the cause of action arose within the local limits of Bungoma High Court. Section 15 of the Civil Procedure Act mandates that suits be instituted where the defendant resides or where the cause of action arises. The court held that the defendant's application was not rendered incompetent by citing the wrong procedural rule, as the substantive law supported the relief sought. Consequently, the court granted the transfer of the suit to Bungoma High Court to ensure compliance with section 15 of the Civil Procedure Act.
Court Disposition
Application for transfer of suit granted.
Orders
- This suit is hereby transferred to Bungoma High Court to be tried and determined thereof.
- The costs of the application dated 7th November 2005 are awarded to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Suit 626 of 2005
ENG. JONAS JOHN MYOYAt/a MYOMUWE CONSTRUCTION CO. ………….………..PLAINTIFF
VERSUS
CHEPTAIS FARMERS CO-OPERATIVE SOCIETY LTD..................................................DEFENDANT
R U L I N G
The plaintiffs plaint clearly indicates that the defendants address of service is P O Box 42 Cheptais.
The defendant has moved this court by a Notice of Motion seeking for the transfer of this suit to Bungoma High Court. In support of the application defence counsel submitted that Cheptais is within the Bungoma area and that accordingly the suit ought to be heard by the High Court at Bungoma. Defence further stated that the defence witnesses are based at Cheptais.
The plaintiff did not contradict the defendant’s counsel’s submissions but opposed the application on the basis that it is incompetent for having relied on order 44 of the Civil Procedure Rules, which order relates to review applications. Plaintiff’s counsel argued that the defendant failed to state the law upon which the application was based.
Section 15 of the Civil Procedure Act provides that suits should be instituted where the defendant resides or where the cause of actions arises. Clearly from the uncontradicted information by the defendant the defendants reside at Cheptais and the cause of action arose within the local limits of Bungoma High Court.
To respond to the defendant’s objection the court is of the view that the defendant’s application is not defeated by the quote of the wrong rule of the civil procedure rules.
The court will therefore not hesitate to grant the prayers sought by the defendant for indeed to grant those prayers will lead to this suit complying with section 15 of the Civil Procedure Act.
The orders of this court are: -
(1) That this suit is hereby transferred to Bungoma High Court to be tried and determined thereof.
(2) That the costs of the application dated 7th November 2005 are awarded to the defendant.
MARY KASANGO
JUDGE
Dated and delivered this 29th March 2006.
MARY KASANGO
JUDGE