[1997] KEHC 4 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT MOMBASA

Misc. Appli. 20 of 1997

HEINZ ISBRECHT ....'........................................... PLAINTIFF

- Versus -

CHARLES OCHIENG NDIGA ........... ........... DEFENDANT

RULING

The application under consideration is the Notice of Motion

dated 25. 2.9. 7 brought under Section 18(1) and (2) of the Civil

Procedure Act seeking the main prayer

"That the Chief Magistrate's civil suit No. 5322 of 1996currently pending for trial be transferred to the HighCourt of Kenya at Mombassa for hearing and finaldisposal".

On the face of it, it was a straight forward application but it

generated strong objections and legal submissions.

There is no dispute that the High Court has the discretion

under Section 18 of the Act to

"withdraw any suit or other proceeding pending in anycourt subordinate to it, and thereafter - try or disposeof the same."

It is the manner of exercise of such discretion that was

contentious.

The suit filed before the Chief Magistrate's Court in December

1996 claimed a sum of Shs. 500,000/= from the defendant on account2

of breach of a building contract pleaded in the suit. The claimwas within the jurisdiction of the Chief Magistrate and wasinstituted by the plaintiff in person. Then in February 1997 theplaintiff in that suit instructed M/S Tindika & Co. Advocates torepresent them. On perusal of the plaint and considering theinstructions given to them by the plaintiff, those Advocatesadvised that the plaintiff was entitled to much more than he hadpleaded and the plaint ought therefore to be amended. The catchwas that the amendment could not be done before the ChiefMagistrate because it would then oust his jurisdiction and if thathappened then the suit could not be transferred to the High Court.The Transfer sought is therefore for the High Court to be able tohandle the matter and for the plaintiff to be at liberty to applyto amend his pleading before the High Court. The claim when theplaint is eventually amended will be in excess of Shs. 1. 2 million.A draft of the intended amendments is annexed to the Application.

For the Applicant it was submitted by Mr. Tindika that theprinciples under which the High Court would exercise its discretionhave been discussed in various authorities which he cited andreviewed at length. These included Kaluba -Vs- Kajaya [19571 E.A.312, which held that the discretion should not be exercised withoutsome reason stronger than the mere balance of convenience. Hesubmitted that the transfer was not being sought for that reason.

Then there is Kagenyi -Vs- Musiramo & Another (1968) E.A. 43

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where it was held that an order for the transfer from one court to

another cannot be made unless the suit has been in the first

instance brought to a court which has jurisdiction to try it. On

this Mr. Tindika pointed out that the Chief Magistrate has

jurisdiction as the case before him currently stands. An

application for transfer can therefore be entertained.

It is also stated in that case, on the principles applicable

that

"There are also authorities for stating that theprincipal matters to be taken into consideration arebalance of convenience, questions of expense, interestsof justice and possibilities of undue hardship."

Mr. Tindika submitted that it was in the interests of justice that

the transfer be allowed because, if the plaintiff's case is

determined as it is before the Chief Magistrate, then the plaintiff

will be shut out of the legal process of claiming any further

amounts and will lose in excess of Shs. 700,000/=. No other suit

can be filed. He referred to Ganatra -Vs- Uganda Electricity Board

[1963] E.A. 26 where the transfer was being sought on the ground

that the combined amounts of the claim and counterclaim would

exceed the jurisdiction of the trial court but it was held that so

long as the two are within the jurisdiction of the trial court, the

transfer of the suit was unnecessary. He posed the query begged by

the decision, that is, whether the suit would have been transferred

if the counterclaim exceeded the jurisdiction of the trial court.

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Finally he referred to passages in Halsburv's Laws of England

and MULLA on the Code of Civil Procedure on the general powers of

the court to transfer cases: thus in Halsburvs:

"The courts power to transfer proceedings from one courtto another is a useful corrective to ensure thatproceedings wherever began or whatever forum theplaintiff has initially chosen should be dealt with orheard or determined by the court most appropriate orsuitable for these proceedings. When.making or refusingan order of transfer the court will have regard to thenature and character of the proceedings the nature of therelief or remedy sought, the interests of the litigantsand the more convenient administration of justice. It isa discretinary power which will be exercised havingregard to all the circumstances of the case."

And from MULLA on the Indian Code of Civil Procedure Section 24

which is in pari materia with Section 18 of our Civil Procedure Act

save for the provision that a subordinate court has the same power

of transfer as the High Court:-

"The plaintiff as arbites litis or dominus litis has theright to choose any forum the law allows him. This rightis subject to control under Section 22 & 24 (Section 17& 18). The burden lies on the applicant to make out astrong case for a transfer. A mere balance ofconvenience in favour of proceedings in another court isnot sufficient ground, though it is a relevantconsideration. As a general rule, the court should notinterfere unless the expenses and difficulties of thetrial would be so great as to lead to injustice or thesuit has been filed in a particular court for the purposeof working injustice. What the court has to consider is

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whether the applicant has made out a case to justify itin closing the doors of the court in which the suit isbrought to the plaintiff and leaving him to seek hisremedy in another jurisdiction".

Relying on these authorities Mr. Tindika submitted that therewas no intention on the plaintiff's part to cause injustice to theother party. His only wish is to have the quantum of damagespayable to him determined by the proper court. There will be noquestion of expense or undue hardship as both courts are stillwithin Mombasa.

In response to these submissions Ms Munyari for the Respondentopposed the application on grounds filed on 5. 3.97. These statethat the application has no merits; is frivolous and abuse of legalprocess; no reasons for transfer has been shown; no explanation isgiven as to why the intended further claim was not pleadedinitially; and finally that the intended proposed claim is totallydifferent from the initial claim. She referred to the initialplaint filed before the Chief Magistrate's Court and compared itwith the intended amended plaint and submitted that the claims weredifferent and will prejudice the defendant's defence. Theplaintiff should have decided once and for all what he wanted toclaim and he did infact do so when he filed the suit before theChief Magistrate's Court. He should not be allowed to transfer thesuit for the purpose of amending the plaint. If he wishes heshould withdraw the suit and file it afresh in another court.

To this Mr. Tindika responded that the claim was not different

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i

since the cause of action was still the same. It is for breach ofcontract. The figures emanating from that cause of action are amatter of mathematics.

As for the plaintiff deciding once and for all what he wishesto claim, he submitted that the law allows any party to amendpleadings at any stage and that right cannot be taken away.

I have considered the application fully and the submissions ofcounsel. I accept the principles cited from various authorities asmost appropriate in assisting the court to exercise its widediscretion that is granted under Section 18 of the Act. Thoseprinciples have been followed by eminent Judges in otherjurisdictions and are persuasive enough for our purposes.

It is clear and is explained by the Applicant that thisapplication was made at a stage when the Chief Magistrate's Courthas jurisdiction to try the suit filed before it. If theamendments had been done there and the jurisdiction of that courthad been ousted thereby, then it is clear that the applicationwould have been a non-starter. The Applicant in the situation hefinds himself had two options. Either to withdraw the suit beforethe lower court and file it in the High Court, or apply to the HighCourt to have it transferred and then apply for the desiredamendments there. The first option would involve the loss of allfiling fees and payment of costs of the withdrawal. It would alsoinvolve the payment of further fees for the entire claim made inthe High Court.

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The other option would mean the payment of costs for theApplication for transfer and also payment of further fees in theHigh Court for the extra sum claimed. Only the fees paid towardsthe original claim will be saved. As far as expense goes it wouldcertainly be more prudent to take the second option and I do notblame the plaintiff/applicant for opting to do so.

The main objections taken are that the claim intended to bemade in the High Court is entirely different. I have perused boththe plaint before the lower court and the intended amendments andI am persuaded that the cause of action remains the same. Only thefigures will change. At any rate the Respondent will have theopportunity once the application for amendment is made to oppose iton any grounds open to him. The court will also consider thequestion of costs. No objections are raised on convenience orother grounds stated in the authorities cited above. Inconsidering the totality of the entire matter I see no prejudicecaused on the defendant/respondent which cannot be atoned for by anorder for costs. It is in the interests of justice that the entireclaim of the plaintiff is considered in one suit as he cannot inlaw file different suits on the same cause of action.

I grant the application for transfer as prayed.

The costs of the Transfer shall be paid to thedefendant/respondent in any event.

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Dated at Mombasa this 11th day of July, 1997.

P.N. WakiJUDGE11/7/97

Coram: Waki, J.

Tindika for applicant

Muriuki holding brief for Ms Munyari for respondentCourt Clerk - MutuaRuling delivered dated and finished in Chambers.

P. N. WAKI

JUDGE