[2020] KEHC 2052 (KLR)
The court found that both the minors, who are the subject of the suit, and the defendant/applicant reside within the jurisdiction of the Kapsabet Principal Magistrates' Court. Section 15 of the Civil Procedure Act mandates that suits be instituted where the defendant resides or where the cause of action arises. The...
Source-derived case information.
- Citation
- [2020] KEHC 2052 (KLR)
- Parties
- Applicant: Hillary Kiplangat Ng'eno; Respondent: Beatrice Chelangat
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 23 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application allowed
- Judges
- AN Ongeri
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Venue of Suit, Child Custody, Residence of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hillary Kiplangat Ng'eno
Applicant
Beatrice Chelangat
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether Sotik PMCC No.9 of 2020 should be transferred to Kapsabet Principal Magistrates' Court for hearing and determination.
- 2 Whether the suit was filed in the appropriate court as per section 15 of the Civil Procedure Act.
- 3 Whether the residence of the minors and the defendant justifies transfer of the suit.
Ratio Decidendi
The court found that both the minors, who are the subject of the suit, and the defendant/applicant reside within the jurisdiction of the Kapsabet Principal Magistrates' Court. Section 15 of the Civil Procedure Act mandates that suits be instituted where the defendant resides or where the cause of action arises. The respondent's reasons for filing at Sotik, namely the covid-19 pandemic and proximity of witnesses, did not outweigh the statutory requirement. Since the applicant's residence and the minors' residence were not disputed, the court held that the application for transfer was meritorious and ordered the transfer of Sotik PMCC No.9 of 2020 to Kapsabet Law Courts for hearing and...
Court Disposition
application allowed
Orders
- Sotik PMCC No.9 of 2020 is transferred to Kapsabet Law Courts for hearing and determination.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
MISC. CIVIL APPLICATION NO.23 OF 2020
HILLARY KIPLANGAT NG’ENO.....................................APPLICANT
VERSUS
BEATRICE CHELANGAT.................................................RESPONDENT
RULING
1. The Application coming for consideration in this ruling is dated 29/7/2020 seeking the following orders;
i) THAT there be a stay of proceedings and/or further proceedings in SOTIK PMCC No.9 of 2020 pending the hearing and determination of this Application (SPENT).
ii) THAT SOTIK PMCC No.9 of 2020 be transferred to KAPSABET PRINCIPAL MAGISTRATES court for hearing and determination.
iii) THAT the costs of the Application be in the cause.
2. The Application is based on the grounds on the face of it and supported by the Affidavit of HILLARY KIPLANGAT NGENO, the Applicant herein.
3. The Respondent filed a Replying Affidavit dated 26/9/2020 opposing the Application dated 29/7/2020.
4. I find that the subject of the suit filed at Sotik PMCC No.9 of 2020 are two minors whose paternity is not contested.
5. The place of filing suits is governed by the provisions of section 15 of the Civil Procedure Act which states as follows;
“Other suits to be instituted where defendant resides or cause of action arises
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.
Explanation.(1)—Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence….”
6. In the current case, the two minors reside at Nandi South within the jurisdiction of Kapsabet Principal Magistrates’ Court.
7. The Plaintiff/Respondent said in her Replying Affidavit that she filed the case at Sotik PM Court because of the covid 19 pandemic and further that the witnesses who have been involved on the issue of the children are at Kaplong.
8. Section 15 states that a suit should be filed where the Defendant resides or where the cause of action arose.
9. The Defendant/Applicant has stated in his Affidavit in support of the Application that he resides and works for gain at Nandi County which is within the jurisdiction of Kapsabet Court.
10. The said issue is not disputed by the Plaintiff/Respondent and I find that the Application dated 29/7/2020 is meritorious and I accordingly allow it and direct that Sotik PMCC No. 9 of 2020 be transferred to Kapsabet Law Courts for hearing and determination.
11. The costs of the Application to be in the cause.
Delivered, dated and signed at Kericho this 23rd October 2020.
A. N. ONGERI
JUDGE