[2012] KEHC 3803 (KLR)
The High Court held that the application was premature and misplaced because the Chief Magistrate's Court had already entered judgment on liability and closed proceedings. The reopening of the case, if at all, must first be addressed in the magistrate's court, which is the court seized of the matter. Only if the...
Source-derived case information.
- Citation
- [2012] KEHC 3803 (KLR)
- Parties
- Applicant: Jackson M Kitulu; Respondent: Bernard Mutune Mwengea; Respondent: Thomas Muoki
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 134 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Transfer, Reopen, and Amend Plaint
- Outcome
- application struck out with costs to the 2nd defendant
- Judges
- GMA Dulu
- Legal Topics
- Transfer of Suit, Amendment of Pleadings, Reopening of Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson M Kitulu
Applicant
Bernard Mutune Mwengea
Respondent
Thomas Muoki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Transfer, Reopen, and Amend Plaint
Legal Issues
- 1 Whether the High Court can transfer a suit from the Chief Magistrate's Court before the magistrate's proceedings are reopened.
- 2 Whether the High Court can grant leave to amend the plaint and reopen the case after judgment on liability has been entered in the magistrate's court.
- 3 Whether the application before the High Court is premature.
Ratio Decidendi
The High Court held that the application was premature and misplaced because the Chief Magistrate's Court had already entered judgment on liability and closed proceedings. The reopening of the case, if at all, must first be addressed in the magistrate's court, which is the court seized of the matter. Only if the magistrate's court refuses to reopen the case can the High Court be approached on appeal. The High Court cannot, through such an application, reopen or amend a case determined by another court. Therefore, the application for transfer, amendment, and reopening was struck out as it was not properly before the High Court.
Court Disposition
application struck out with costs to the 2nd defendant
Orders
- The application is struck out as premature and misplaced.
- Costs awarded to the 2nd defendant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MACHAKOS
Miscellaneous Application 134 of 2011
JACKSON M KITULU …………………………………………… PLAINTIFF/APPLICANT
VERSUS
1. BERNARD MUTUNE MWENGEA
2. THOMAS MUOKI …….........…………………………… DEFENDANT/RESPONDENT
R U L I N G
Before me is a Notice of Motion dated 25th May 2011. It was filed by the Plaintiff Jackson M Kitulu. It seeks orders that:-
1. (Spent).
2. This court be pleased to transfer MACHAKOS PMCC No. 643/03 Jackson M Kitulu –vs- Bernard Mutune Mwengea & Thomas Muoki from the Chief Magistrate’s Court Machakos to the High Court at Machakos for determination and disposal.
3. This Honourable Court be pleased to allow the plaintiff/applicant leave to reopen his case, recall witnesses and produce evidence upon such notice to the Defendant as the court may direct.
4. This Honourable Court be pleased to allow amendment of the plaint herein and the interim draft amended plaint annexed hereto and marked “A” be deemed as duly filed and served upon the defendants.
5. Such orders and/or directions be made as will advance the interests of justice in the case.
6. The costs of this application be in the cause.
The application is opposed by the 2nd defendant. The plaintiff and 2nd defendant filed written submissions to the application. On the hearing date, Mr Mwalimu, appeared for the plaintiff while Mr Makau, appeared for the 2nd defendant.
This is a civil case that was filed in the Chief Magistrate’s Court. From the contents of submissions filed, judgment on liability was entered therein. The formal proof case has now been closed, and a final decision of the magistrate is awaited.
The plaintiff has now come to this court through the application, seeking several orders. He claims that this application was necessitated by the subsequent death of the victim after the case was instituted in the magistrate’s court, and additional expenses incurred. Therefore, the Chief Magistrate might not be having the monetary jurisdiction to accommodate the damages that can be awarded.
In my view, this application is premature with regard to the request for transfer of the case and amending the plaint. Judgment having been entered by the Chief Magistrate’s Court and proceedings having been closed, the reopening of the case has to be addressed first. Such reopening of the case, can only be done in the magistrate’s court. This court cannot reopen the proceedings in the magistrate’s court unless on appeal, if the Magistrate’s Court refuses to reopen the case. This court cannot through such an application reopen a case or matter which has been determined by another court.
It is after the case is reopened, that an application can be made to this court for transfer of the case from the subordinate court, and for amendment of the plaint.
The case of Kassam –vs- Bank of Baroda (Kenya) Ltd (2002), KLR 294 is distinguishable, as it deals with a request for amendment of pleadings in the court which is seized of the matter. In the present case, the High Court is not seized of the case Machakos CMCC No. 642 of 2003.
In the result, I find this application as premature and misplaced, and strike out the same with costs to the 2nd defendant.
It is so ordered.
Dated and delivered at Machakos this 12thday of June 2012.
George Dulu
Judge
In presence of:-
N/A for Plaintiff/Applicant
N/A Defendant/Respondent
Nyalo – Court clerk.