[2017] KEHC 9757 (KLR)
The court found that both Milimani Chief Magistrate’s Court and Kiambu Chief Magistrate’s Court had jurisdiction to hear the matter, as the cause of action arose in Kiambu County and the defendants reside in Nairobi. The applicants’ witnesses are based in Kiambu, and the limited grant of ad litem was obtained there,...
Source-derived case information.
- Citation
- [2017] KEHC 9757 (KLR)
- Parties
- Applicant: Joseph Mutava Mutua; Applicant: Francisca Loko Mutava; Respondent: Sharad Rao; Respondent: Lawrence Mbogo Njeru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 62 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Transfer of Suit, Territorial Jurisdiction, Cause of Action Location
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutava Mutua
Applicant
Francisca Loko Mutava
Applicant
Sharad Rao
Respondent
Lawrence Mbogo Njeru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the court should transfer Nairobi CMCC No. 372 of 2017 from Milimani Commercial Court to Kiambu Chief Magistrate’s Court for trial and determination.
- 2 Whether the suit was properly filed within the appropriate territorial jurisdiction.
Ratio Decidendi
The court found that both Milimani Chief Magistrate’s Court and Kiambu Chief Magistrate’s Court had jurisdiction to hear the matter, as the cause of action arose in Kiambu County and the defendants reside in Nairobi. The applicants’ witnesses are based in Kiambu, and the limited grant of ad litem was obtained there, making Kiambu a more convenient forum. There was no evidence of prejudice to the respondents if the suit was transferred. Accordingly, the court exercised its discretion under Section 18 of the Civil Procedure Act to allow the transfer of the suit to Kiambu Chief Magistrate’s Court.
Court Disposition
application allowed
Orders
- Nairobi CMCC No. 372 of 2017 is transferred from Milimani Commercial Court to Kiambu Chief Magistrate’s Court for trial and determination.
- Costs of the application to the respondents in any event.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL MISC. NO. 62 OF 2017
JOSEPH MUTAVA MUTUA.......................................................1ST PLAINTIFF/APPLICANT
FRANCISCA LOKO MUTAVA...................................................2ND PLAINTIFF/APPLICANT
(suing as the administrators of the estate of the Late Elizabeth Mbenyi (deceased)
VERSUS
SHARAD RAO....................................................................1ST DEFENDANT/RESPONDENT
LAWRENCE MBOGO NJERU ........................................ 2ND DEFENDANT/RESPONDENT
RULING
1. The application dated 13th February, 2017 seeks orders that the Honourable Court be pleased to transfer Nairobi CMCC No. 372 of 2017 from the Chief Magistrate’s Court at Milimani Commercial court to Kiambu Chief Magistrate’s court for trial and determination of the same.
2. The application is predicated on the grounds stated in the application and is supported by the affidavit of Joseph Mutava Mutua, the 1st Applicant. It is stated that CMCC Nbi 372/17 was erroneously filed in Milimani Chief Magistrate’s Court instead of at the Kiambu Chief Magistrate’s Court. That the accident the subject matter of the suit occurred along Njathaini area along Ruiru-Ruaka road in Kiambu County. That a report of the accident was made at Kiambu police station and that the Applicant’s witnesses work in Kiambu County and the limited grant of ad litem was obtained at the Kiambu Chief Magistrate’s Court. It is further deponed that the Respondents will not suffer any prejudice if the orders sought are allowed. It is further averred that the summons are yet to be served.
3. The application is opposed. The Respondents filed the grounds of opposition dated 28th February, 2017 which state as follows:
“1. The application is incurably defective and an abuse of due process of the court.
2. The defendants reside in Nairobi within the jurisdiction of the Honourable Court.
3. If the primary suit was erroneously filed at Milimani Law Courts as now claimed, then the suit was defective ab initio.”
4. The application was canvassed by way of written submissions. I have considered the said submissions.
5. This court is empowered under Section 18 of the Civil Procedure Act to transfer suits on application by the parties or on it’s own motion in accordance with the said provision.
6. Under Section 14 & 15 of the Civil Procedure Act, a suit for compensation or for wrong done to the person or to moveable property may be filed within the territorial jurisdiction of the court where the cause of action arose or where the Defendant(s) resides or works.
7. In the case at hand, it is stated that the cause of action arose in Kiambu county and that the Defendants reside in Nairobi. Thus the Plaintiffs had the option of either filing the suit in Chief Magistrate’s Court Nairobi like he did or in the Chief Magistrate’s Court Kiambu where the cause of action arose.
8. The Applicants’ averment that their witnesses work in Kiambu means access to justice would be easier if the matter is transferred to the Chief Magistrate’s Court, Kiambu. There is no evidence of any prejudice that the Respondents will suffer if the suit is transferred.
9. In the upshot, I allow the application. Costs if this application to the Respondents in any event.
Date, signed and delivered at Nairobi this 30th day of Nov., 2017
B. THURANIRA JADEN
JUDGE