[2013] KEHC 4709 (KLR)
The High Court determined that it possesses the jurisdiction to transfer a suit from one subordinate court to another under the Civil Procedure Act and Article 165(7) of the Constitution. The respondent's argument that the suit must first be withdrawn is incorrect, as the law allows for transfer to ensure...
Source-derived case information.
- Citation
- [2013] KEHC 4709 (KLR)
- Parties
- Applicant: Joseph A. Mado; Respondent: The Chairman, Secretary and Board of Trustees, Kisii Nursing Home; Respondent: Daniel Orenge; Respondent: Daniel Ogamba Nyandago
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 20 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application granted
- Legal Topics
- Transfer of Suits, Jurisdiction of Subordinate Courts, Venue of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph A. Mado
Applicant
The Chairman, Secretary and Board of Trustees, Kisii Nursing Home
Respondent
Daniel Orenge
Respondent
Daniel Ogamba Nyandago
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the High Court has jurisdiction to transfer a suit from one subordinate court to another.
- 2 Whether a suit filed in a court lacking jurisdiction can be transferred or must be withdrawn and refiled.
- 3 Whether the transfer of the suit would prejudice the respondents.
Ratio Decidendi
The High Court determined that it possesses the jurisdiction to transfer a suit from one subordinate court to another under the Civil Procedure Act and Article 165(7) of the Constitution. The respondent's argument that the suit must first be withdrawn is incorrect, as the law allows for transfer to ensure convenience and the fair administration of justice. The court found that no prejudice would be caused to the respondents by the transfer. Consequently, the application to transfer the suit from Kakamega Chief Magistrate's Court to Maseno Law Courts was granted as prayed.
Court Disposition
application granted
Orders
- The suit Kakamega CMCC No. 121 of 2008 is transferred to the Maseno Law Courts.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Miscellaneous Application 20 of 2012 [if gte mso 9]><xml>
14. 00
</xml><![endif]
JOSEPH A. MADO..............................................................APPLICANTS
V E R S U S
THE CHAIRMAN,SECRETARY AND BOARD OF TRUSTEES
KISII NURSING HOME
DANIEL ORENGE
DANIEL OGAMBA NYANDAGO........RESPONDENTS/DEFENDANTS
R U L I N G
The Notice of Motion dated 2nd April 2012 seeks to transfer Kakamega CMCC No. 121 of 2008 to the Maseno Law Courts. Parties agreed to file written submissions but none filed submissions. The applicant contends that the suit before the subordinate court emanates from a road traffic accident that occurred along the Oyugis – Kisumu road at Sikiri center. Some of the defendants come from Maseno, Kisumu and Kisii. He would like to have the case transferred to the Maseno Court as it is the best court to determine the case.
In opposition to the application the respondents contend that the suit before the Kakamega Chief Magistrate was filed before a court that lacked jurisdiction. That being the case, then the suit cannot be transferred to another court. it should be withdrawn and then a fresh suit filed.
The Civil Procedure Act allows the High Court to transfer suits form one subordinate court to another. Similarly, Article 165(7) allows the High Court to call for any proceedings before any subordinate court and make orders or give direction it considers appropriate to ensure the fair administration of justice. The contention by the respondents that the suit before the Kakamega Court has to be withdraw first is misplaced. The place of suing is meant for convenience of the litigants and if the High Court is of the view that the case ought to be heard at a different forum or court, it has powers to do so.
I am satisfied that the application dated 8th July 2011 is merited. No prejudice will befall the respondents. The application is granted as prayed. Costs shall be in the cause.
Delivered, dated and signed at Kakamega this 7th day of February, .2013
SAID J. CHITEMBWE
J U D G E