[2022] KEHC 2050 (KLR)
The court found that the appellant failed to prove that the respondent was a resident of Katheri, which was necessary to establish jurisdiction in Githongo court. However, the court emphasized that denying a party a hearing on merit solely due to a jurisdictional technicality is contrary to the overriding objective...
Source-derived case information.
- Citation
- [2022] KEHC 2050 (KLR)
- Parties
- Appellant: Joyce Nyawira Mutegi; Respondent: Dennis Mutwiri Kaburu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E015 of 2021
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- TW Cherere
- Legal Topics
- Jurisdiction of Court, Transfer of Suit, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joyce Nyawira Mutegi
Appellant
Dennis Mutwiri Kaburu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Githongo court had jurisdiction to hear the suit based on the location of the accident and the residence of the defendant.
- 2 Whether the appellant discharged the burden of proof regarding the respondent's residence.
- 3 Whether striking out the suit for want of jurisdiction was justified or whether the suit should be transferred for hearing on merit.
Ratio Decidendi
The court found that the appellant failed to prove that the respondent was a resident of Katheri, which was necessary to establish jurisdiction in Githongo court. However, the court emphasized that denying a party a hearing on merit solely due to a jurisdictional technicality is contrary to the overriding objective of the civil procedure rules and Article 159 of the Constitution. Therefore, while the trial magistrate's finding on jurisdiction was legitimate, the appropriate remedy was not to strike out the suit but to transfer it to the court with proper jurisdiction. The order striking out the suit was set aside, the suit reinstated, and transferred to the Chief Magistrate’s Milimani...
Court Disposition
appeal allowed
Orders
- The order dated 11th January, 2021 striking out the Appellant’s suit is set aside.
- Appellant’s suit is reinstated for hearing on merit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. E015 OF OF 2021
BETWEEN
JOYCE NYAWIRA MUTEGI.......................... APPELLANT
AND
DENNIS MUTWIRI KABURU...................RESPONDENT
(Being an appeal from ruling in Githongo PMCC NO. 3 OF 2020 by Hon. E.W.Ndegwa (RM) on 11th January, 2021)
JUDGMENT
Background
1. The accident that is the subject matter of this suit occurred along Njiru-Mwiki road as a result of which the accident motor vehicle plunged into Nairobi River.
2. The Appellant pleaded that the course of action arose along Kasarani-Mwiki Road but the Defendant is a resident of Katheri.
3. Defendant/Respondent raised an objection to the place of filing the suit on the ground that it occurred outside the jurisdiction of Githongo Court and that he is a resident of Nairobi.
4. It is trite law that "whoever alleges must prove. Section 107 of the Evidence Act, Chapter 80 Laws of Kenyastates as follows:
1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
5. For Appellant’s suit to fall within the ambit of the provisions of Section 14 of the Civil Procedure Code, she had a duty to prove that Respondent is a resident of Katheri and not Nairobi which she failed to do.
6. Consequently, I find that the finding by the trial magistrate was legitimate. However, it should be the court’s last resort to deny a party a chance to be heard. The overriding objective of the civil procedure rules is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Judicial authority to do justice to all, vested on this court by Article 159 of the Constitution cannot be said and be seen to be exercised if the courts were to deny a party a chance to be heard on merit only for the reason that the suit ought to have been filed in another court.
7. In conclusion, the appeal is allowed in the following terms:
1)The order dated 11th January, 2021 striking out the Appellant’s suit is set aside
2)Appellant’s suit is reinstated for hearing on merit
3)Githongo PMCC NO. 3 OF 2020is transferred to Chief Magistrate’s Milimani Commercial Courts Nairobi for hearing and disposal
DELIVERED IN MERU THIS 24thDAY OF FEBRUARY 2022
WAMAE. T. W. CHERERE
JUDGE
Court Assistant -Morris Kinoti
For the Appellant - Mr. Gichunge for Gichunge Muthuri & Co Advocates
For the Respondent - Ms. Oteko for Kiruki & Kayika Advocates