[2020] KEHC 9584 (KLR)
The court found that the nature of the injuries sustained by the minor and the possibility of an award exceeding the pecuniary jurisdiction of the Chief Magistrate’s Court justified the transfer of the suit to the High Court. The court exercised its discretion under Section 18(1)(b)(i) of the Civil Procedure Act,...
Source-derived case information.
- Citation
- [2020] KEHC 9584 (KLR)
- Parties
- Applicant: Master GM (Suing through his Mother and next friend JM); Respondent: Dr. Donald Oyatsi; Respondent: Dr. Thomas Ngwiri; Respondent: Gertrudes Childrens Hospital; Respondent: Uhai Neema Hospital
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 508 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate Court to High Court
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Transfer of Suits, Pecuniary Jurisdiction, Personal Injury, Medical Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Master GM (Suing through his Mother and next friend JM)
Applicant
Dr. Donald Oyatsi
Respondent
Dr. Thomas Ngwiri
Respondent
Gertrudes Childrens Hospital
Respondent
Uhai Neema Hospital
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate Court to High Court
Legal Issues
- 1 Whether the High Court should grant leave to transfer CMCC No.3469 of 2018 from the Chief Magistrate's Court to the High Court.
- 2 Whether the anticipated award of damages exceeds the pecuniary jurisdiction of the Chief Magistrate's Court.
- 3 Whether a suit filed without jurisdiction can be cured by transfer to the High Court.
Ratio Decidendi
The court found that the nature of the injuries sustained by the minor and the possibility of an award exceeding the pecuniary jurisdiction of the Chief Magistrate’s Court justified the transfer of the suit to the High Court. The court exercised its discretion under Section 18(1)(b)(i) of the Civil Procedure Act, holding that it has the power to withdraw and transfer a suit from a subordinate court where the interests of justice so require. The opposition by the 2nd and 3rd respondents, based on the argument that the suit was fatally defective for want of jurisdiction, was not persuasive in light of the anticipated quantum of damages and the statutory powers of the High Court. The...
Court Disposition
application allowed
Orders
- The application to transfer CMCC No.3469 of 2018 from the Chief Magistrate's Court to the High Court is allowed.
- Costs in the cause.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL MISC. APPL. NO. 508 OF 2019
MASTER GM( Suing thro’ his
Mother and next friend JM).........................................................APPLICANT
VERSUS
DR. DONALD OYATSI....................................................1ST RESPONDENT
DR. THOMAS NGWIRI.................................................2ND RESPONDENT
GERTRUDES CHILDRENS HOSPITAL.....................3RD RESPONDENT
UHAI NEEMA HOSPITAL.......................THIRD PARTY/RESPONDENT
RULING
1. The application dated 15th July, 2019 seeks orders that this honourable court be pleased to grant leave to issue an order transferring CMCC No.3469 of 2018 between (Master GK a minor suing through JM mother and next friend) and Dr. Donald Oyatsi, Dr. Thomas Ngwiri, Getrudes Children Hospital and Uhai Neema Hospital at Milimani Commercial Courts to the High Court.
2. It is stated in the grounds and the affidavit in support that the award of damages anticipated herein is beyond the pecuniary jurisdiction of the Chief Magistrate’s Court. It is averred that the minor herein suffered permanent brain damage and requires nursing and medical care for life.
3. The 1st Respondent and the Third Party are not objected to the application.
4. The application was opposed by the 2nd and 3rd Respondents as per the grounds of opposition dated 12th November, 2019. The said grounds are as follows:
1. The application is misconceived, frivolous, vexatious, an afterthought after the fact and as such an abuse of the court process.
2. The application is incurably defective, incompetent, misplaced and lacking in merits.
3. The application has no substratum.
4. Milimani CMCC No. 3469 of 2018, was filed without jurisdiction, and the fatal defect cannot be cured by having the fatally defective suit transferred.
5. The original suit was filed without jurisdiction and was fatally defective ab initio. The defect cannot be cured after the fact. Jurisdiction is everything.
6. The Plaintiff/Applicant has come to court with unclean hands.
5. The copy of the plaint exhibited herein reflects the particulars of the injuries sustained by the minor as follows:
“- Development of sepsis and gangrene over the left lower limb.
Shock with permanent and irreversible brain injury.
Amputation of the left lower limb (below knee)”
There’s a possibility that depending on the nature of the evidence adduced, the award can go beyond the pecuniary jurisdiction of the Chief Magistrate’s Court.
6. The High Court has powers to withdraw and transfer a case instituted in the lower court. Section 18(1)(b) (i) of the Civil Procedure Act provides as follows:
“18. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage -
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter -
(i) try or dispose of the same....”
7. With the foregoing, this court finds merits in the application. The application is hereby allowed with costs in cause.
Date, signed and delivered at Nairobi this 6th day of May, 2020
B. THURANIRA JADEN
JUDGE