[2015] KEHC 4382 (KLR)
The court found that at the time of commencement of the suit in 1995, the applicant was resident in Mombasa, not Malindi. Therefore, the respondent was correct in filing the suit in Mombasa. Furthermore, the applicant had expressly admitted to the jurisdiction of the Mombasa court in their defence, amounting to...
Source-derived case information.
- Citation
- [2015] KEHC 4382 (KLR)
- Parties
- Respondent: Fragrasso Company Limited; Applicant: Malindi Management Strategy Ltd T/A Casino Malindi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 97 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed with costs to the respondent
- Judges
- MM Kasango
- Legal Topics
- Transfer of Suit, Jurisdiction, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fragrasso Company Limited
Respondent
Malindi Management Strategy Ltd T/A Casino Malindi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from Mombasa to Malindi based on the residence of the defendant and the location of the cause of action.
- 2 Whether the delay of 19 years in bringing the application affects the applicant's entitlement to the transfer.
- 3 Whether the defendant acquiesced to the jurisdiction of the Mombasa court.
Ratio Decidendi
The court found that at the time of commencement of the suit in 1995, the applicant was resident in Mombasa, not Malindi. Therefore, the respondent was correct in filing the suit in Mombasa. Furthermore, the applicant had expressly admitted to the jurisdiction of the Mombasa court in their defence, amounting to acquiescence. The court also considered the inordinate delay of 19 years in bringing the application for transfer, which militated against granting the application. On these grounds, the application for transfer was dismissed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 4th April 2015 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISC APPLICATION NO. 97 OF 2014
FRAGRASSO COMPANY LIMITED........PLAINTIFF/RESPONDENT
VERSUS
MALINDI MANAGEMENT STRATEGY LTD
T/A CASINO MALINDI..............................DEFENDANT/APPLICANT
R U L I N G
1. The miscellaneous application, hereof, is for an order that Mombasa civil suit No 252 of 1995 be transfered to Malindi court for hearing and determination.
2. The application is premised on two grounds. Firstly that the cause of action arose in Malindi, and secondly that the applicant is ordinarily resident in Malindi.
3. The application was opposed by the respondent, who is the plaintiff in magistrate's court case. In the replying affidavit sworn by the respondent on 15th August 2014 it was deponed that the magistrate's court case was filed in 1995, 19 years ago. That the case was fully heard before Hon. Maloba Senior Resident Magistrate but before the final submissions were made before that magistrate he was transferred out of the Mombasa law court station. That the applicant, when directions were being given by another magistrate, stated that the record of the proceedings of Maloba Senior Resident Magistrate had a lot of information missing. It is as a result of that, that the case was ordered to start denovo. Before it started denovo the applicant made the present application.
4. The respondent also deponed, which was not controverted by the applicant, that when the magistrate's court case was filed the respondent resided in Mombasa and only relocated to Malindi subsequently.
ANALYSIS
Section 15 of the Civil Procedure Act is the section which.
5. That section provides that a suit shall be filed where the defendant resides or carry on business at the commencement of the suit. I emphasize 'at the commencement ' of the suit. The question in that regard to be determined is where was the applicant/defendant residing in 1995. It is not controverted that the defendant was a resident of Mombasa at the commencement this suit. Because it is central to the present application. I will reproduce section 15 thus:
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.
6. The applicant's application is defeated on two front bearing the provisions of that section into account firstly is that the applicant was a resident of Mombasa at commencement of this suit. The respondent therefore was right to have filed the case in Mombasa.
7. The Section further defeats respondent's application because it provides that a suit may be filed where the defendant acquiesces. The respondent in his defence filed in the magistrate's court stated:
“ The jurisdiction of the honourable court is admitted”.
He admitted to the jurisdiction of the magistrate's court in Mombasa. Having so acquiesced the respondent cannot be heard to say that he is prejudice by the case continuing to be heard before the magistrate's court at Mombasa.
8. The respondent does not also deserve the exercise of this court's discretion in his favour in view of the delay in bringing the present application. Respondent waited for 19 years to bring the present application. Here the delay certainly does defeat the respondent's application.
CONCLUSION
The Notice of Motion dated 4th April 2015 for the reasons stated above is dismissed with costs to the respondent.
Dated and delivered at Mombasa this 25th day of June 2015.
MARY KASANGO
JUDGE
25. 6.2015
Coram
Before Justice Mary Kasango
C/Assistant- Kavuku
For the Applicant
For the Respondent
Court
Ruling delivered in their presence/Absence in open court.
MARY KASANGO
JUDGE