[2013] KEHC 2106 (KLR)
The court exercised its discretion under Section 18 of the Civil Procedure Act to transfer the suit to Garissa High Court. The judge found that the cause of action arose within the jurisdiction of Garissa High Court and that transferring the case would promote accessibility of justice by reducing hardship and...
Source-derived case information.
- Citation
- [2013] KEHC 2106 (KLR)
- Parties
- Plaintiff: Joshua Musyoka (Suing for and on behalf of Independent Presbyterian Church of Kenya); Respondent: Japheth Mulandi Kitui
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 233 of 2012
- Procedural Posture
- Civil Case / Ruling on Application for Transfer of Suit
- Outcome
- Application allowed; suit transferred to Garissa High Court.
- Judges
- LN Mutende
- Legal Topics
- Transfer of Suit, Jurisdiction, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Musyoka (Suing for and on behalf of Independent Presbyterian Church of Kenya)
Plaintiff
Japheth Mulandi Kitui
Respondent
Procedural Posture
Civil Case / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred to Garissa High Court or Mwingi Law Courts for hearing and determination.
- 2 Whether the court has discretion to transfer the case for convenience and accessibility of justice.
Ratio Decidendi
The court exercised its discretion under Section 18 of the Civil Procedure Act to transfer the suit to Garissa High Court. The judge found that the cause of action arose within the jurisdiction of Garissa High Court and that transferring the case would promote accessibility of justice by reducing hardship and expense for the parties, particularly the church congregation. The absence of opposition to the application and the lack of prejudice to either party further supported the decision to transfer the suit. The court emphasized that justice should not be hindered by logistical challenges such as distance to the court.
Court Disposition
Application allowed; suit transferred to Garissa High Court.
Orders
- The suit is transferred to Garissa High Court for hearing and determination.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
No. 98/2013
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 233 OF 2012
JOSHUA MUSYOKA(Suing for and on behalf of Independent Presbyterian church of Kenya………..………………………………………………….PLAINTIFF
VERSUS
JAPHETH MULANDI KITUI ………………..............................................................................................................................................………………………..RESPONDENT
RULING
The Application dated 20th November 2012 filed by the defendant seeks to transfer this case to Garissa High Court or Mwingi Law Courts for hearing and final disposal. It is premised on the grounds that the cause of action arose at Kalisasi in Mwingi which is within the jurisdiction of Garissa High Court where the case should have been filed at the first instance and that no prejudice will be suffered by either party if the suit is transferred.
In the affidavit in support of the application Japheth Mulandi, the Applicant depones that the High Court, Garissa is seized of jurisdiction to determine the case which the church congregation has an interest of attending; travelling to Machakos will be very expensive as it is far away from where the church is situated.
The application is unopposed.
Accessibility of justice is paramount when it comes to dispensation of the same. It would be unjust to subject parties to hardship when it comes to attendance of Courts due to the distance.
Consequently, using my discretion under Section 18 of the Civil Procedure Act, I hereby transfer this case to Garissa High Court for hearing and determination.
Costs of the application shall be in the cause.
Mention at Garissa High Court on 21/10/2013.
It is so ordered.
DATED, SIGNED and DELIVEREDat MACHAKOS this 26THday of SEPTEMBER 2013.
L.N. MUTENDE
JUDGE