[2022] KEHC 3021 (KLR)

Executive Super Rides Limited v Kiambi (Miscellaneous Application 14 & 15 of 2020 (Consolidated)) [2022] KEHC 3021 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3021 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Application 14 & 15 of 2020 (Consolidated)

PJO Otieno, J

June 17, 2022

Between

Executive Super Rides Limited

Applicant

and

Raphael Patrick Mugambi Kiambi

Respondent

Ruling

1. Before the court for determination is a Notice of Motion under certificate of urgency dated 13/10/2020 by the applicant, Executive Super Rides Limited, brought under section 5a of the Magistrates Act, Order 51 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 15(a) and 18(1) (b)(i) of the Civil Procedure Act and all other enabling provisions of the law. In it, the applicant principally seeks an order of the transfer of Meru CMCC No.228/2018 Raphael Patrick Mugambi Kimabi v Executive Super Rides Limited to Milimani Commercial courts at Nairobi and an interlocutory order that there be stay of proceedings in CMCC No.228/2018 Raphael Patrick Mugambi Kimabi v Executive Super Rides Limited pending the hearing and determination of this application.

2. The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Job Odhiambo Ochieng, the applicant’s counsel, sworn on even date. The gist is that the parties entered into a sale agreement for a motor vehicle registration number KCG 553 Y for Kshs. 2,650,000 in Nairobi, where its principal registered office is, the agreement was breached by the respondent hence the cause of action arises out of a contract executed in Nairobi within the territorial jurisdiction of CMC Court in Nairobi and it is only prudent that the application is allowed as prayed.

3. He further avers that CMCC No.228/2018 is still at an interlocutory stage, and as such, no prejudice or undue hardship will be occasioned to the respondent but expresses apprehension that if the application is denied, the applicant will be left without recourse, as it is owed sale monies of the motor vehicle. He concludes that the applicant will abide by any terms the court may deem just and fit for the grant of the orders sought.

4. In response and opposition to the application, the respondent took out a notice of preliminary objection dated 3/11/2020, on the ground that the issues raised herein were res judicata, as they were fully adjudicated upon through the applicant’s preliminary objection in Meru CMCC 228/2018 by a court of competent jurisdiction, whose findings are not subject to any review or appeal.

5. Directions were taken on 5/11/2020 that the application and preliminary objection be heard together and canvassed by way of written submissions, which were respectively filed on 1/12/2020 and 21/12/2020.

6. For the applicant, submissions were made that the court is clothed with jurisdiction under Sections 17 and 18 of the Civil Procedure Act to transfer any suit instituted in a specific subordinate court to another for purposes of adjudication and disposal. It cited the provisions of Sections 1A, 3A and 15 of the Civil Procedure Act adding that the transfer will accord the witnesses easier access and save time in terms of distance. It submitted that no prejudice will be occasioned to any party if the matter is transferred, as the matter has not been set down for hearing.

7. For the applicant the order for transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court with jurisdiction. It relied on Meeli Ole Naisewa v Benson Gachuki Kinyanjui(2016)eKLR, where the law on jurisdiction was expounded while stressing that since the place where the transaction took place and its registered offices are in Nairobi, the matter ought to be heard there.

8. On the position that the matter is res judicata, it was submitted that the dismissal of the preliminary objection by the subordinate court cannot operate as a ground for res judicata in the current suit and cited Cosmas Mrombo Moka v Cooperative Bank of Kenya Limited (2018)eKLR, where it was held that, “the bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. That clearly means that in the matter or issue in question there has been an application of the judicial mind and a final adjudication made.”

9. The applicant views its only recourse was to file this miscellaneous matter to address the issue of transfer under Section 18 of the Civil Procedure Act. It urged the court the court to allow the application as prayed.

10. In opposing submissions, the respondent posited that the application was res judicata, because it had been fully adjudicated upon in Meru CMCC No.228/2018 and a judgement delivered on 16/2/2012. In his view, the applicant’s case was an appeal cleverly cloaked, mischievously disguised as a misc application, and if the applicant was aggrieved by the decision of the court, the correct avenue for seeking redress was through an appeal. He urged the court to dismiss the application, as the applicant was seeking similar orders as those dealt with by the ruling of 3/9/2019. He submitted that the applicant was granted leave to file its appeal on 30/9/2020, but when it went into slumber, the said leave lapsed. He cited Salim Ahmed Said v Faud Husen Humeiemn(1960) E.A 97, where it was held:“it appears to us that learned counsel for the appellant overlooks the fact that there may be a statutory direction that in case the plaintiff neglects to provide evidence and to prove his claim as he is bound to do, the court do proceed to decide the suit on such material as is actually before it, and the decision so pronounced shall have the force of decree on the merits notwithstanding the default on the part of the plaintiff.”

11. He submitted that Section 7 of the Civil Procedure Act was couched in mandatory terms and as such, the applicant was strictly barred from instituting the subsequent application as the issues were directly and substantially the same. He accused the applicant of coming to the court with soiled hands with a similar matter which was litigated in earlier proceedings, instead of seeking review or appeal, yet he had enough time to do so. He felt that the applicant was abusing the court process by using the court to settle its own scores, and urged the court to disallow the application.

Analysis and Determination 12. Upon perusal of the materials placed before the court, the mandate and obligation of the court emerges to be the determination whether there has been established a case for transfer from one subordinate to another. However, there has been raised an objection on the standing and propriety of the application on the allegations that the same is res judicata.

13. If indeed there had been a similar question presented to a court of competent jurisdiction which determined same on the merits, then the court is barred by law from entertaining the subsequent matter. For that reason, the objection by the respondent questions the jurisdiction of the court to hear the application and must therefore be dealt with first and before any other matter for the law remains that jurisdiction is everything to the court and one be satisfied that it has jurisdiction before it entertains any matter.

14. By a ruling by the trial court in the matter sought to be transferred, the court overruled an objection challenging its jurisdiction and determined that it had the requisite jurisdiction to deal with the matter. That decision remain undisturbed. I gather the Notice of preliminary objection by the respondent here as the plaintiff before the lower court to have sought striking out of the suit on account of lack of jurisdiction. There was no question as to whether the suit was to be transferred. Accordingly, I do find that the question of transfer pursuant to section 18 of the Act was not before the lower court so as to make the current application an endevour to take a second bite at the cherry.

15. In any event, if there was to be an application for transfer before the lower court, then such would have been a misadventure for it is not within its jurisdiction to order transfers. In short, I find the preliminary objection to have been improperly taken, it is without merit and it is therefore dismissed.

16. On the merits of the application for transfer, there is no denial that the dispute is over performance or breach of a contract for sale of a motor vehicle between the two parties entered into in Nairobi. Such a suit is governed by the provisions of section 15 of the Civil Procedure Act.

17. This application is brought under among other provisions Sections 15(a) and 18(b) (i) of the Civil Procedure Act. Indeed, the High Court is empowered under Section 18 of the Act to withdraw and transfer any suit pending before a lower court to itself or to another court of competent jurisdiction to hear and determine it. Section 15 of the Act on the hand provides that other suits ought to be instituted where the defendant resides or cause of action arises. It stipulates that: -“15. subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—(a)the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or(b)any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or(c)the cause of action, wholly or in part, arises.

18. There is no opposition to the application other than on the allegations that the same is res judicata, which I have determined was a misconception. The fact in the pleadings however, show that the contract was indeed entered in Nairobi where the applicant asserts to have it registered offices. The contents of the document, when applied to the law cited above, the dispute between the parties ought to have been filed and litigated in Nairobi and not Meru.

19. Those assertions by the applicant have not been denied by the respondent hence they remain uncontested. On the basis that the fact showing where the suit ought to have been instituted to Nairobi, there is every merit in the application. It is allowed on terms that Meru CMCC No. 288 of 2018, Raphael Patrick Mugambi vs Executive Super Rides ltd is withdrawn from Meru Chief Magistrates Court and transferred to, Nairobi, (Milimani Commercial Court), Chief Magistrates Court, for hearing and final disposal.

20. On the 5th day of November 2020, this and Misc. Application No 14 of 2020, were consolidated hence this ruling must bind that other file. The effect of the binding is that, Meru CMCC No. 102 of 2019, James Gikundi vs Executive Super Rides ltd, is equally transferred to Nairobi, (Milimani Commercial Court), Chief Magistrates Court, for hearing and final disposal.

21. On costs, the Applicant has succeeded and is awarded the costs of the two applications.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the ApplicantNo appearance for the RespondentCourt Assistant: Mwenda