[2021] KEHC 8504 (KLR)
The court found that the applicant had satisfied the requirements under Sections 11 and 18 of the Civil Procedure Act for the transfer of a suit between subordinate courts. The absence of opposition from the respondents and the supporting affidavit detailing the necessity for transfer persuaded the court that the...
Source-derived case information.
- Citation
- [2021] KEHC 8504 (KLR)
- Parties
- Applicant: Issack Hajir Abdi; Respondent: Ali Farah Mohamed; Respondent: Abdi.Rehmanali Mohamed; Respondent: Noor Mohamed Dakane; Respondent: Equity Bank- Hola Branch
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E00l of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application allowed
- Judges
- DB Nyakundi
- Legal Topics
- Transfer of Suits, Jurisdiction of Subordinate Courts, Court Discretion, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issack Hajir Abdi
Applicant
Ali Farah Mohamed
Respondent
Abdi.Rehmanali Mohamed
Respondent
Noor Mohamed Dakane
Respondent
Equity Bank- Hola Branch
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the applicant has met the legal threshold for transfer of a suit from one subordinate court to another under Section 18 of the Civil Procedure Act.
- 2 Whether the circumstances justify the transfer of Hola Principal Magistrate's Civil Case No. 2 of 2020 to Garsen Senior Principal Magistrate's Court.
Ratio Decidendi
The court found that the applicant had satisfied the requirements under Sections 11 and 18 of the Civil Procedure Act for the transfer of a suit between subordinate courts. The absence of opposition from the respondents and the supporting affidavit detailing the necessity for transfer persuaded the court that the interests of justice would be served by granting the application. The court emphasized that the power to transfer is discretionary and must be exercised based on the specific facts and circumstances of each case. In this instance, the applicant demonstrated sufficient reason and brought themselves within the statutory provisions, justifying the transfer of Hola Principal...
Court Disposition
application allowed
Orders
- The notice of motion dated 4.2.2021 is allowed.
- Hola Principal Magistrate's Civil Case No. 2 of 2020 is transferred to Garsen Senior Principal Magistrate's Court for hearing and determination.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARSEN
MISC. CIVIL APPL. NO.E00l OF 2021
ISSACK HAJIR ABDI......................................................................APPLICANT
VERSUS
ALI FARAH MOHAMED........................................................1ST RESPONDENT
ABDI.REHMANALI MOHAMED.........................................2ND RESPONDENT
NOOR MOHAMED DAKANE.............................................. 3RD RESPONDENT
EQUITY BANK- HOLA BRANCH....................................... 4TH RESPONDENT
Coram
Hon. Justice R. Nyakundi Applicant in person
Gekanana Advocate for the respondents
RULING
This is an application by the applicant seeking an order to transfer Hola Principal Magistrate's Civil Case No. 2 of 2020from that registry to Garsen Senior Principal Magistrate's Courtfor hearing and determination.
According to the applicant, the action was initially initiated at the Principal Magistrate Court at Hola but on account of the events that have taken place since instituting the suit as premised in the supporting affidavit, there is necessity to transfer the suit to another Court of equal status and jurisdiction.
The respondents though served, failed to enter appearance or file any rejoinder to the application. Therefore, non-challenge to the application makes it easier for the Court to determine whether the applicant desire to move the suit from Hola Court to Garsen for adjudication has merit.
Determination
Section 18 of the Civil Procedure Act empowers the Court to transfer suits from one subordinate Court to another. The conditions to meet by the applicant as stipulated in the provisions include interalia:
Balance of consequence, questions of expense, undue hardship interest of justice, want of jurisdiction and for any sufficient reasons.(See case of David Kabungu v Zikarenga & 4 others, Kampala HCC No. 36 of 1995, Hangshore Agro-chemicals Industries Ltd v Panda Flowers Ltd {2012} eKLR)
In George Mwongera Mwenda Meru v Loise Gakii Misc. Application No. 70 of 2015 the Court held that:
''A superior Court, has the powerto transfer causes from one subordinate Courtto another for hearing and disposal. The Court went onto hold that the power served an important purpose in Lawto attain the ends of and facilitate accessto justice. That was why the Court could invoke and exercise the power suomoto."
The requirement that before the Court will issue an order for transfer must meet the outlined criteria is a useful one but it cannot be applicable generally it depends largely on the facts and circumstances of a particular case. To that extent looking at Section11 and 18 of the Civil Procedure Act, it is clear that the applicant has brought himself within the provisions of those Sections for the Court to act and move to transferSuit No. 2 of 2020initially filed atHola Principal Magistrates Court at Hola to Garsen Senior Principal Magistrates Courtfor trial and final determination.
In the end, the notice of motion dated 4. 2.2021 be and is hereby allowed and the costs to be borne by the applicant.
DATED SIGNED AND DELIVERED AT MALINDI THIS 26TH DAY OF FEBRUARY, 2021.
………………………
R. NYAKUNDI
JUDGE
NB: This Ruling has been emailed to the advocates
pursuant to the cause list of 26. 2.2021
Issackhajir80@gmail.com Aomwancha2013. @gmail.com