[2008] KEHC 2147 (KLR)
The court found that the applicant failed to provide sufficient grounds for the transfer of the suit. The only reason advanced was the trial court's refusal to allow a preliminary objection, which does not amount to bias or misconduct. Furthermore, the applicant did not annex the relevant proceedings or ruling to...
Source-derived case information.
- Citation
- [2008] KEHC 2147 (KLR)
- Parties
- Applicant: James Mithika; Respondent: Simon Mithika Chokera; Respondent: District Land Adj. Officer Meru North
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 116 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Transfer of Suits, Judicial Discretion, Grounds for Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mithika
Applicant
Simon Mithika Chokera
Respondent
District Land Adj. Officer Meru North
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the applicant has established sufficient grounds for the transfer of Tigania SRM Civil Suit No. 72 of 2007 to Meru Chief Magistrates Court.
- 2 Whether the refusal by the trial court to allow a preliminary objection constitutes bias or misconduct warranting transfer.
Ratio Decidendi
The court found that the applicant failed to provide sufficient grounds for the transfer of the suit. The only reason advanced was the trial court's refusal to allow a preliminary objection, which does not amount to bias or misconduct. Furthermore, the applicant did not annex the relevant proceedings or ruling to substantiate his claims. The court emphasized that the High Court's discretion to transfer cases must be exercised judiciously and only in rare circumstances where justice so demands. In this case, no such circumstances were demonstrated. Consequently, the application for transfer was dismissed.
Court Disposition
application dismissed
Orders
- The application for transfer is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
MISC . APPLI . 116 OF 2007
JAMES MITHIKA ………………………………………… APPLICANT
VERSUS
SIMON MITHIKA CHOKERA ………………………..... 1ST RESPONDENT
DISTRICTLANDADJ. OFFICER MERU NORTH ….. 2ND RESPONDENT
RULING
The application before me is by Notice of Motion dated 2nd November 2007. It seeks an order of transfer of Tigania SRM Civil Suit No. 72 of 2007 to Meru Chief Magistrates Court for trial and disposal.
The application is grounded on the basis that the applicant has no confidence in the Tigania Court where he has been sued as a defendant and he has counter-claimed. The only reason why the applicant has lost confidence in that court is as a result of a refusal by the trial court to allow a preliminary objection. The application was argued exparteas the three respondents did not reply to it. Counsel for the 3rd respondent did not oppose it.
The High Court is clothed with wide discretion in matters of transfer of suits or appeals, either from itself to any court subordinate to it or between subordinate courts or even from any subordinate court to itself. In the exercise of this discretion the High Court must act judicially and in the interest of justice. Transferring a suit from a magistrate with jurisdiction to another magistrate also with jurisdiction will only be resorted to in very rare situations. There must be sufficient ground for doing so.
The reason advanced for the transfer in the present application is not sufficient ground. The fact that a preliminary point was disallowed does not, per se constitute any form of misconduct on the part of the trial court. Secondly, the proceedings disallowing the preliminary objection and the ruling are not annexed.
I have looked at the ruling in particular and fail to discern any bias on the part of the learned magistrate. In dismissing the objection, the trial magistrate simply gave his opinion. The applicant’s recourse in the circumstances cannot be in the transfer of the case.
The application must therefore fail and is dismissed. I make no orders as to costs.
Dated and delivered at Meru this 3rd …day of June…… 2008.
W. OUKO
JUDGE