[2008] KEHC 2674 (KLR)
The court held that there was no basis for the Defendant's contention that the subordinate court lacked jurisdiction, as the draft Amended Defence and Counterclaim had not yet been deemed duly filed. The application for leave to amend was still pending before the lower court, and only upon its determination could...
Source-derived case information.
- Citation
- [2008] KEHC 2674 (KLR)
- Parties
- Applicant: Francis Ngige Waweru; Respondent: Devson Investment Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1686 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Motion to Transfer Suit
- Outcome
- Defendant's Notice of Motion struck out as incompetent; preliminary objection upheld.
- Legal Topics
- Transfer of Suit, Jurisdiction of Subordinate Courts, Preliminary Objection, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ngige Waweru
Applicant
Devson Investment Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Motion to Transfer Suit
Legal Issues
- 1 Whether the subordinate court lacks jurisdiction to hear and determine the draft Amended Defence and Counterclaim.
- 2 Whether the application to transfer the suit to the High Court is premature and an abuse of process.
- 3 Whether the Defendant's Notice of Motion is competent.
Ratio Decidendi
The court held that there was no basis for the Defendant's contention that the subordinate court lacked jurisdiction, as the draft Amended Defence and Counterclaim had not yet been deemed duly filed. The application for leave to amend was still pending before the lower court, and only upon its determination could the issue of jurisdiction arise. Therefore, the application to transfer the suit to the High Court was premature and constituted an abuse of process. The preliminary objection was upheld, and the Defendant's Notice of Motion was struck out as incompetent.
Court Disposition
Defendant's Notice of Motion struck out as incompetent; preliminary objection upheld.
Orders
- The Defendant’s Notice of Motion filed on 5th December, 2007 is struck out and expunged from the record.
- Costs of the application awarded to the Plaintiff/Respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Misc Appli 1686 of 2007
FRANCIS NGIGE WAWERU …………….……....….... APPLICANT
VERSUS
DEVSON INVESTMENT LTD ……………….…… RESPONDENT
RULING
(1) On the 16th October, 2007, the Defendant filed a Chamber Summons in the subordinate court seeking orders that the Defendant be granted leave to amend his Amended Defence and Counterclaim.
(2) Learned counsel for the Plaintiff filed a Notice of preliminary objection on the 12th November, 2007 in which he challenged the Defendant’s application as being incurably incompetent and seeking that it be struck out.
(3) On the 14th November, 2007, the Plaintiff’s application came up for hearing before the Hon. Mrs. Kimingi (SPM) and Her Honour stood the application over generally. Consequently, the application is still pending before the Chief Magistrate court.
(4) Even before prosecuting his application in the lower court, the Defendant filed the Notice of Motion now before me on the 5th December, 2007 seeking that the suit in the lower court be transferred to this court on grounds “that the subordinate court does not have jurisdiction to hear and determine the draft Amended Defence and Counterclaim.”
(5) The Plaintiff has taken issue with the application by filing a Notice of Preliminary Objection contending that the Application is vexatious and an abuse of process.
(6) In his Defence and Counterclaim filed on the 21st June, 1995, the Defendant prays for judgment against the Plaintiff for “costs of renovation, partitioning, construction and all the improvements all to be assessed by this Honourable court.” There has been no assessment or determination or finding by the lower court or otherwise that the Defendant’s claim in the counterclaim exceeds the jurisdiction of the lower court. There is therefore, no basis for the Defendant’s contention “that the subordinate court does not have jurisdiction to hear and determine the draft amended Defence and Counterclaim”for the simple reason that the draft Amended Defence and Counterclaim has not even been deemed to have been duly filed. That will only occur if the pending application in the lower court is heard and determined in the Defendant’s favour. I would, therefore, agree with Mr. Ashiruma that the application before me is premature and an abuse of process and consequently uphold his preliminary objection filed on the 29th January, 2008.
(7) The order which must follow is that the Defendant’s Notice of Motion filed on the 5th December, 2007 is incompetent and it is accordingly hereby struck out and expunged from the record with the costs thereof to the Plaintiff/Respondent.
So ordered.
Dated and delivered at Nairobi this 15th day of April, 2008.
P. Kihara Kariuki
Judge