[2008] KEHC 1926 (KLR)
The court found that although the general principle is that the High Court cannot transfer a suit from a court that lacks jurisdiction, in cases involving personal injuries, the jurisdiction of the lower court may be revisited if unforeseen circumstances such as aggravation of injuries arise, potentially increasing...
Source-derived case information.
- Citation
- [2008] KEHC 1926 (KLR)
- Parties
- Applicant: Jedidah Wambu Gutu; Respondent: Marie Stores Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 127 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application allowed
- Legal Topics
- Transfer of Suit, Pecuniary Jurisdiction, Court Powers, Personal Injury Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jedidah Wambu Gutu
Applicant
Marie Stores Kenya Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the High Court can transfer a suit from the Senior Resident Magistrate Court to itself when the lower court lacks pecuniary jurisdiction.
- 2 Whether the aggravation of injuries and expected higher damages justify transfer of the suit to the High Court.
Ratio Decidendi
The court found that although the general principle is that the High Court cannot transfer a suit from a court that lacks jurisdiction, in cases involving personal injuries, the jurisdiction of the lower court may be revisited if unforeseen circumstances such as aggravation of injuries arise, potentially increasing the damages beyond the lower court's pecuniary limits. The paramount consideration is the need to do justice to the injured litigant. The court accepted the applicant's argument regarding aggravated injuries and held that the transfer was justified to ensure justice. Accordingly, the application for transfer was allowed and the orders sought were granted.
Court Disposition
application allowed
Orders
- The application for transfer is allowed.
- Civil Suit No. 30 of 2005 Baricho Senior Resident Magistrate Court is transferred to the High Court at Embu for trial and final disposal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc. Appli. 127 of 2007
JEDIDAH WAMBU GUTU………..………………………….APPLICANT
VERSUS
MARIE STORES KENYA LTD…………………………..RESPONDENT
RULING
Notice of Motion dated 30/11/2007 seeking orders for the transfer Civil Suit No. 30 of 2005 Baricho Senior Resident Magistrate Courtto this court for trial and final disposal. The ground upon which the orders are sought is that the Senior Resident Magistrate Court does not have pecuniary jurisdiction to award expected damages. A medical report made on 6/11/2007 shows that the injuries have become aggravated and the expected award shall be higher than a sum awardable by in the circumstances. The application is opposed. The Respondent submits that the transfer cannot be ordered since the lower court is without jurisdiction several authorities are cited to support his proposition:-
1. HCC No. 86/2004 Mombasa. The principle matters to be taken into consideration are a balance of conveniences, questions of expense interest of justice and possibilities of undue hardship
2. HCC No. 308/2002 at Nairobi on transfer of suit under section 18 CPA.
The High Court has no power to transfer a case where it was filed in a court without jurisdiction.
Upon considering the authorities and submissions of parties I have to say that in a case which concerns injuries to a person it is possible to say even Resident magistrate has jurisdiction to determine any damages. I do not say that the lowest court has not jurisdiction to deal with the matter. However the need may arise due to unseen circumstance or aggravation of the injuries that may require the issue of pecuniary jurisdiction to be revisited. This does not to me appear as advocate mistake. I believe what the applicant on the aggravated injuries, it is my view that the need to do justice to the injured litigant is paramount consideration.
I therefore allow this application and grant orders sought.
Dated this 29th May, 2008.
J. N. KHAMINWA
JUDGE
29/5/2008
Khaminwa – Judge
Njue – Clerk
Mr. Mwai HB for Mr. Magee
Ruling read in open court.
J. N. KHAMINWA
JUDGE