[2009] KEHC 964 (KLR)
The application to withdraw and transfer the subordinate court case to the High Court for execution was incompetent because there was no decree for a specific amount of compensation, as the subordinate court had not assessed damages. The cited sections 3 and 34 of the Civil Procedure Act did not provide a basis for...
Source-derived case information.
- Citation
- [2009] KEHC 964 (KLR)
- Parties
- Applicant: James Ogata Nyantenga; Respondent: The Clerk Keroka Town Council; Respondent: Keroka Town Council
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 55 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Subordinate Court Case for Execution of Decree
- Outcome
- application struck out with costs
- Legal Topics
- Transfer of Proceedings, Execution of Decree, Jurisdiction of Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ogata Nyantenga
Applicant
The Clerk Keroka Town Council
Respondent
Keroka Town Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Subordinate Court Case for Execution of Decree
Legal Issues
- 1 Whether the High Court can withdraw and transfer a subordinate court case for execution of a decree where the compensation amount exceeds the subordinate court's jurisdiction.
- 2 Whether sections 3 and 34 of the Civil Procedure Act apply to the application for transfer.
- 3 Whether the application is competent in the absence of an assessment of damages by the subordinate court.
Ratio Decidendi
The application to withdraw and transfer the subordinate court case to the High Court for execution was incompetent because there was no decree for a specific amount of compensation, as the subordinate court had not assessed damages. The cited sections 3 and 34 of the Civil Procedure Act did not provide a basis for the transfer sought. The proper procedure would have been to seek transfer under section 18 of the Civil Procedure Act, but even then, an assessment of damages was required before execution. Therefore, the application was struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Miscellaneous Application 55 of 2009
JAMES OGATA NYANTENGA..............................APPLICANT
-VERUS-
1. THE CLERK KEROKA TOWN CUNCIL )
2. KEROKA TOWN COUNCIL )........RESPONDENTS
R U L I N G
On 14/7/200l the Chief Magistrate’s court at Kisii gave judgment for the applicant against the respondents in the following terms:
“the Defendants, their agents or servants are hereby restrained from demolishing the plaintiff’s premises on plot no. East Kitutu/Mwamangera/1376. In the alternative full compensation should be made before the demolition. Costs of the suit to the plaintiff.”
Following that the respondents demolished the premises. A contempt application was successfully made in the High Court in respect of which a fine of Kshs. 20,000/= was imposed.
The applicant sought to be compensated for the demolition and engaged a quantity surveyor to work out the value. It came to kshs. 3,745,200/=. This was beyond the monetary jurisdiction of the subordinate court. This is why an application is now being made before this court under sections 3and 34(1) and (2) of the Civil Procedure Act to have an order made to withdraw and transfer to itself the subordinate court case for the purposes of the execution of the decree.
This court listened to Mr. Momanyi on the application and also to Mr. Ntabo in response.
The subordinate court ordered for compensation but did not asses the amount of compensation. Mr. Momanyi informed court that after the quantity surveyor came up with his figure notice was sent to the respondents to pay, but that there was neither response nor payment. There is no decree in respect of the mount of damage as there has been no assessment. Mr. Momanyi thought the subordinate court could not deal with the assessment because of issue of jurisdiction. He needed to come to this court under section 18 of the Civil Procedure Act. Sections 3 and 34 of the Civil Procedure Act are not applicable to the circumstances of this application. It follows that the application incompetent and is struck out with costs.
Dated, signed and delivered at Kisii this 11th day of November, 2009.
A.O.MUCHELULE
JUDGE
11/11/2009
11/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr.Moracha for Respondent
COURT: Ruling in open court.
A.O.MUCHELULE
JUDGE
11/11/2009