[2021] KEHC 3776 (KLR)
The court found that the accident giving rise to the suit occurred within Bungoma County, making courts within that county the proper forum for hearing the matter. The presence of key witnesses, the investigating police station, and relevant medical institutions in Bungoma County further supported this conclusion....
Source-derived case information.
- Citation
- [2021] KEHC 3776 (KLR)
- Parties
- Applicant: Erick Mulwo Manyiror; Applicant: Haron Cheptot Mulwo; Respondent: West Kenya Sugar Company Ltd; Respondent: Justine Wamalwa Kharinda; Respondent: John Ayuko
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 39 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Transfer Suit
- Outcome
- Application partially allowed; suit transferred to Kimilili magistrate's court; costs to respondents.
- Judges
- DN Musyoka
- Legal Topics
- Transfer of Suit, Territorial Jurisdiction, Magistrates Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Mulwo Manyiror
Applicant
Haron Cheptot Mulwo
Applicant
West Kenya Sugar Company Ltd
Respondent
Justine Wamalwa Kharinda
Respondent
John Ayuko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion to Transfer Suit
Legal Issues
- 1 Whether the Mumias magistrate's court has territorial jurisdiction over the accident suit.
- 2 Whether the suit should be transferred to Butali or Kimilili magistrate's court.
- 3 Whether lack of territorial jurisdiction renders the suit incompetent.
Ratio Decidendi
The court found that the accident giving rise to the suit occurred within Bungoma County, making courts within that county the proper forum for hearing the matter. The presence of key witnesses, the investigating police station, and relevant medical institutions in Bungoma County further supported this conclusion. The court held that the issue of territorial jurisdiction did not render the suit incompetent but warranted its transfer to the appropriate court. The application for transfer to Butali was declined, and instead, the court ordered the transfer of the suit from Mumias to Kimilili magistrate's court, which was determined to have the correct territorial jurisdiction.
Court Disposition
Application partially allowed; suit transferred to Kimilili magistrate's court; costs to respondents.
Orders
- The suit in Mumias PMCCC No. 197 of 2018 is withdrawn from the Mumias law courts and transferred to the Kimilili magistrate's court for hearing and disposal.
- The respondents shall have the costs of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CIVIL APPLICATION NO. 39 OF 2020
ERICK MULWO MANYIROR...................................................................1STAPPLICANT
HARON CHEPTOT MULWO...................................................................2ND APPLICANT
VERSUS
WEST KENYA SUGAR COMPANY LTD............................................1ST RESPONDENT
JUSTINE WAMALWA KHARINDA....................................................2ND RESPONDENT
JOHN AYUKO.........................................................................................3RD RESPONDENT
RULING
1. The application for determination is a Motion, dated 7th August 2020. It seeks transfer of a suit pending at the magistrate’s court at Mumias to the Butali magistrate’s court, saying that the suit was erroneously filed at Mumias. The suit is Mumias PMCCC No. 197 of 2018. The accident is said to have occurred along the Kitale-Webuye road, and it is said that that is within the geographical limits of the Butali law courts. The defendant is said to do business at the Butali market.
2. The application is opposed. It is argued that the traffic accident the basis for the suit happened within the local limits of the Kimilili law courts, and that that was the court with jurisdiction. It is argued that the applicants say that the defendant does business at Butali, yet it is not identified which of the 3 defendants they refer to. It is pointed out that there are other suits arising from the same accident that are pending at the Kimilili court, and copies of their pleadings have been attached. It is further argued that the application for transfer is a reaction to an application that the respondents have filed in the Mumias suit where the issue of jurisdiction has been raised.
3. I note that the applicants have not attached any pleadings to their application, so that I cannot even tell whether the suit they refer to exists, and to assess whether or not there was the error that they allude to. Thankfully the respondents have been more elaborative, and have salvaged the situation
4. Both sides have filed written submisons, and cited authority. It is clear that the accident occurred within Bungoma County, and it is courts within that County that ought to have jurisdiction. The key witnesses ought to be there, being any eyewitnesses, and so is the police station that is seized of the investigation into the accident, as well as the medical institutions where the victims of the accident might have received the first line of treatment.
5. Anyway, the issue of jurisdiction only appears limited to the territorial or geographical limits of the trial court. It does not go to the core or heart of the matter. I do not believe that that would make the suit incompetent. It would still be transferable to the court with territorial jurisdiction. I am persuaded to order the transfer, but not to Butali, but rather to Kimilili.
6. The final order is that the suit, in Mumias PMCCC No. 197 of 2018, is, by this order, withdrawn from the Mumias law courts, and shall be transferred to the Kimilili magistrate’s court, for hearing and disposal. The respondents shall have the costs of the application.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OFSEPTEMBER,2021
W. MUSYOKA
JUDGE