[2017] KEHC 956 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

FAMILY DIVISION

MILIMANI

MISC APPLICATION NO. 145 OF 2016

IN THE MATTER OF TRANSFER OF THE KISUMU CHILDREN’S CASE NO. 48 OF 2016 FROM THE KISUMU LAW COURTS TO MILIMANI LAW COURTS NAIROBI

AND

IN THE MATTER OF THE CONSOLIDATION OF THE NAIROBI CHILDREN’S CASE NO. 1311 OF 2016 WITH KISUMU CHILDREN’S CASE NO. 48 OF 2016

AND

IN THE MATTER OF H J O (MINOR)

BY

W O O............................................................APPLICANT

VERSUS

D O.............................................................RESPONDENT

RULING

The Subject of this Ruling is a Notice of Motion Application dated 7th November 2016 brought under Section 1A, 1B, 17 and 18 of the Civil Procedure Act, 2010, Order 47 of the Civil Procedure Rules, 2010, The Children’s Act, 2001 and other enabling provisions of the Law. The Said Application was brought under certificate of urgency and sought Orders that:

I. Pending the inter-pates hearing and determination of the Application, there be a stay of proceedings in the Civil Case Nairobi Children’s Court No. 1311 of 2016 and Kisumu Children’s Case No. 48 of 2016 and the ex-parte Orders issued in the Kisumu Court be lifted.

II. That this Hon. Court be pleased to remove and transfer the Kisumu Children’s Court Case No. 48 of 2016 from the Kisumu Law Courts to the Nairobi Milimani Law Court and the same be consolidated with the Nairobi Children’s Case No. 1311 of 2016 for hearing and determination.

The grounds in support of the Application as adduced were that:

I. The Application is filed in the paramount interest of the Minor whose custody is the bone of contention and has been filed in 2 different Courts with competent jurisdiction and unless the Application is heard and Orders issued expeditiously, the matter may be judged res-judicata.

II. The Applicant herein is the Plaintiff in the Court case filed as Nairobi Children Case No. 1311 of 2016 while the Respondent is the Defendant

III. The Respondent is the Plaintiff in the Court case filed as Kisumu Children Case No. 48 of 2016 while the Applicant herein is the Defendant

IV. Both cases concern the custody of the Minor herein which is in contention as both parties are his biological parents and they can request for and have an equal, legal and inherent right to the custody of the Minor but in circumstances that are in the interests of the Minor.

V. The parties had been married but now live separate lives; with the Applicant living and working at Nairobi while the Respondent lives and works in Kisumu.

VI. The parties got themselves in the litigation herein after the Respondent abducted the Minor from the Applicant’s actual custody, care and control and re-located him to Kisumu, only to file her current suit and demand maintenance of the Minor despite the fact that she is a head-teacher at a Secondary School and earns a considerable amount of money and it is apparent she forcefully took the Minor for her own financial benefits not in the interests of the Minor.

VII. The Nairobi Case No. 1311 of 2016 was filed on 19th October 2016 and pleadings served on 28th October 2016.

VIII. The Kisumu Case No. 48 of 2016 was filed on 17th October 2016 and pleadings served on 1st November 2016 albeit the Respondent was unfairly issued by temporary custody ex-parte which the Applicant desires to contest.

IX. The 2 matters are similar and they should thus be consolidated into one case by transferring the Kisumu Case to Nairobi for its hearing and determination.

X. The consolidation, transfer, hearing and determination must be done expeditiously taking into consideration the best interests of the Minor.

The grounds were reiterated in his Affidavit in Support of the Application. The Respondent herein filed her Replying Affidavit on 29th March 2017. She deposed that the Nairobi children Case No. 1311 of 2016 was filed after the Kisumu Case which amounted to an abuse of the process of the Court. She denied the allegations that she abducted the Minor and in the alternative stated that the Applicant took custody of the Minor and denied her access to the Minor which made her case in Kisumu children Court. She denied having filed the Kisumu to advance her personal interests. She submitted that the Children’s Court in Kisumu granted her temporary custody of the Minor who currently attends lives and schools in Kisumu. She further submitted that in is in the interest of justice and convenient that the Nairobi matter be transferred to Kisumu for the full hearing and determination since the Minor resides in Kisumu and the proposed transfer will not be prejudicial to the Applicant. She desposed that she stands to incur more expenses and undue hardship should the case be transferred to Nairobi and she prayed that the Application be dismissed.

APPLICANT’S SUBMISSION

The Parties canvassed the matter by filing their respective written submissions on diverse dates. The Applicant filed his submissions on 6th April 2017 to wherein he submitted on to the issue of which Court had jurisdiction to hear and determine the issue on the custody of the Minor. He submitted that, in determining the issue, the Court ought to consider where the Minor lived prior to him been taken to Kisumu and where he; being the Applicant resides. He relied on Section 15 of the Civil Procedure Act, 2010 which provides:

“…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 theleave 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…”

RESPONDENT’S SUBMISSIONS

The Respondent also filed her submissions on 7th April 2017. She acknowledged that pursuant to Section 18 of the Civil Procedure Act, 2010, High Court has powers to transfer a suit from one subordinate Court to another. She relied on Aberdare InvestmentsvBernard Wachira & 5 others [2014] Eklrand that of Joseph MururivGodfrey Gikundi Anjuri [2012] eKLR to support the same.

In submitting on what the Court should look at when exercising its powers donated to it under Section18, she relied on the principles governing transfer of cases as espoused in the case of Hangzou Agrochenicals LtdvPanda Flowers Ltd [2012] eKLR where justice Odunga relied on the case of David KibunguvZikarenga & 4 Others, Kampala HCCS No. 36 of 1995 wherein it was held:

“…Section 18(1) (b) of the Civil Procedure Act, 2010 gives the Court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo-moto by the Court without application by any party. The burden lies on the Applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another Court is not sufficient ground though it is a relevant consideration. As a general rule, the Court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular Court for the purpose of working injustice. What the Court has to consider is whether the Applicant has made out a case to justify it in closing the doors of the Court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction…it is well established principle of law that the onus is upon the party applying for a case to be transferred from one Court to another for due trial to make out a strong case to the satisfaction of the Court that the Application ought to be granted…”

She also relied on the same of KagenyivMusiramo & Anor [1968] EA 43 to submit that in deciding whether or not to transfer the case, the Court should consider the nature of the remedies sought, interests of the litigants and the more convenient forum for the administration of justice. She submitted that the transfer of the Kisumu case to Nairobi will greatly prejudice her as she is currently the one residing with the Minor in Kisumu. Further, she argued that the Applicant had not made out her case to warrant transfer of the Kisumu case to Nairobi.

On the issue of consolidation, she admitted that the two cases met the threshold for consolidation as they raised the same question of fact and law as held in the case of Nyati Guards & Security LtdvMombasa Municipal Council HCCC No. 992 of 1994.

On the issue of res-judicata, she submitted that the Applicant’s argument that unless his Application is heard and orders issued the matter may be judges res-judicata does not apply in the instant case as neither of the two cases were heard and concluded.

She also submitted that the Applicant’s prayer to set-aside the orders issues pending the hearing and determination of this Application is misconceived as it is not in the best interests of the Child as espoused under Article 53(2) of the Constitution, 2010 and Section 4(3) of the Children’s Act, 2001. She prayed that the Application be dismissed with costs.

ANALYSIS AND DETERMINATION

This matter is about transfer and consolidation of suits. Transfer of suits from one lower Court to another is primarily governed by the Civil Procedure Act, 2010as read together with the relevant provisions of theCivil Procedure Rules, 2010. Section 17 of the Act provides,

“Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.”

Section 18 of the Act give the High the power to transfer a case instituted in the lower courts on application by the parties or on its own motion. It provides;

“…the High Court may at any stage—

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—

(i)…

(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(iii)…

These provisions give the High court powers to transfer a case from one sub-ordinate court to another if the circumstances of the case so warrant the transfer. In addition to the afore-highlighted provisions, the overriding objectives of the Act stipulates that the objective of the legislation is to facilitate just and efficient resolution of disputes.

This power has been discussed in Aberdare InvestmentsvBernard Wachira & 5 others where it was held:

“It is clear from these provisions (section 17 and 18) of the Civil Procedure Act, 2010 that the Court with the jurisdiction to transfer a suit from or to a sub-ordinate court is the High Court pr courts with similar status.”

It is not in contention from the pleading that the jurisdiction to transfer is vested in the High Court. The Applicant’s plea is that the Kisumu Children Case No. 48 of 2016 be transferred to the Nairobi Children’s Court in Milimani primarily because it ought to have been filed where he, the Defendant resides as required by Section 15 of the Civil Procedure Act, 2010. The Respondent on the other hand opposed this intended request arguing that the Kisumu Children was filed first and thus the Respondent had no business filling another similar suit in Nairobi and the same amounted to an abuse of the process of the Court. From the facts as pleaded, this is Children matter wherein the parties are fighting for the custody of the Minor. This therefore calls for the Court to take into account the best interests of the Child in considering whether or not the requested transfer is warranted.

It has been pleaded that the Kisumu Children Case 48 of 2016 was filed on 17th October 2016 while the Nairobi Children Case was filed 2 days after. The Applicant alleges that he was served with the pleading on 1st November 2016 way after he has filed his suit and served his pleading. This position has been denied by the Respondent and neither party has furnished their Affidavit of Service in Court to support their averments. This being the case, this Court will consider the best interests of the Child as espoused in Section 4 of the Children’s Act, 2001 in determining which forum is more convenient for the determination of the matter. In the instant case this shall include; considering where the Minor lives, where he goes to school and who has physical custody of the Child. Having regard to the sentiments expressed by both parties in their pleadings, this Court is of the view that the Kisumu Children Case having been filed first be allowed to continue and that the Nairobi Children Case be transferred to Kisumu and consolidated with that of Kisumu for further hearing and determination as the 2 matters involves similar questions of facts and law. This is because besides the fact that the Kisumu case was filed, temporary custody orders were granted and the matter being certified urgent was issued a hearing date. Transfer of the matter in Nairobi to the Chief Magistrate’s Court in Kisumu will also give the Respondent an opportunity to seek review taking into account that he has expressed his discontentment with the said orders. Accordingly, this Court orders as follows:

I. The Application of 7th November 2016 is not granted.

II. The Nairobi Children’s Case No. 1311 of 2016 shall be transferred to Chief Magistrates Court Kisumu and the same shall be consolidated with Kisumu children Case No. 48 of 2016 for an inter-partes hearing and determination.

III. There are no orders as to costs.

IV. Any aggrieved party may apply.

It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017.

M.W.MUIGAI

JUDGE