https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8842
The court dismissed the transfer application because it was not persuaded that the respondent had been properly served, noting irregular service by email on a firm whose appearance was unexplained and service occurring after the affidavit of service; given the applicant's non-compliance with directions, the...
Source-derived case information.
- Citation
- [2026] KEHC 8842 (KLR)
- Parties
- 1st Applicant / Legal Representative of the Estate of the Late Dymian Kipchumba: John Kipkoech Kibor; 2nd Applicant / Legal Representative of the Estate of the Late Dymian Kipchumba: Hellen Jemutai Koech; Respondent: Corner Stores Molo Limited
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous E032 of 2025
- Procedural Posture
- Civil Miscellaneous Application for Transfer of Suit / Ruling on Unopposed Notice of Motion
- Outcome
- Application dismissed
- Judges
- ["SM Mohochi"]
- Legal Topics
- Transfer of Suit, Service of Process, Discretionary Relief, Affidavit of Service, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kipkoech Kibor
1st Applicant / Legal Representative of the Estate of the Late Dymian Kipchumba
Hellen Jemutai Koech
2nd Applicant / Legal Representative of the Estate of the Late Dymian Kipchumba
Corner Stores Molo Limited
Respondent
Procedural Posture
Civil Miscellaneous Application for Transfer of Suit / Ruling on Unopposed Notice of Motion
Legal Issues
- 1 Whether the application for transfer of Nakuru MCCC No. E734 of 2025 to Kabarnet was properly served on the respondent
- 2 Whether the applicants had met the threshold for the court to exercise discretion in granting a transfer order
- 3 Whether costs should follow the event or be withheld
Ratio Decidendi
The court dismissed the transfer application because it was not persuaded that the respondent had been properly served, noting irregular service by email on a firm whose appearance was unexplained and service occurring after the affidavit of service; given the applicant's non-compliance with directions, the discretionary relief could not be granted.
Court Disposition
Application dismissed
Orders
- The notice of motion application dated 21st January 2026 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
Kibor & another (Suing as Legal Representatives of the Estate of the Late Dymian Kipchumba) v Corner Stores Molo Ltd (Civil Miscellaneous E032 of 2025) [2026] KEHC 8842 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8842 (KLR) Republic of Kenya In the High Court at Nakuru Civil Miscellaneous E032 of 2025 SM Mohochi, J June 19, 2026 Between John Kipkoech Kibor 1st Applicant Hellen Jemutai Koech 2nd Applicant Suing as Legal Representatives of the Estate of the Late Dymian Kipchumba and Corner Stores Molo Limited Respondent Ruling 1.Before court for determination is a notice of motion application dated 21st January 2026 filed pursuant to section 1A, 1B, 3, and 3A of the Civil Procedure Act and orders 40 rule 1, 2 & 3 and 51 rule 1 of the Civil Procedure Rules seeking the following relief(s):i)Spentii)Spentiii)That the Honourable Court be pleased to transfer the file Nakuru MCCC No, E734 of 2025 John Kipkoech Kibor & Hellen Jemutai Koech (Suing as Legal Representatives of the Estate of the late Dymian Kipchumba) -vs- Corner Store Molo Limited from the Chief Magistrates Court at Nakuru to the Chief Magistrates Court at Kabarnet for hearing and determination of the matter.iv)That each party to bear own costs. 2.The application is premised on the grounds on its face and the supporting affidavit sworn by the applicant and evenly dated. That the applicant filled the suit Nakuru MCCC No E734 of 2025 John Kipkoech Kibor & Hellen Jemutai Koech (Suing as Legal Representatives of the Estate of the late Dymian Kipchumba) -vs- Corner Store Molo Limited at Nakuru law Courts on 8th August, 2025. 3.That in essence, the suit is a personal injury claim arising from a road traffic accident that occurred on the 27/01/2025 along Marigat-Kefri Road within Marigat Town in Baringo County leading to the unfortunate demise of Dymian Kipchumba, a 4-year-old boy. 4.That the suit is now before the Nakuru Law Courts but is yet to be issued with a date before any Magistrate either for mention, directions, hearing or any other proceeding thereof. 5.The court had directed the application be disposed-off by way of filed written submissions and that the same be served upon the respondent for a hearing on merit. 6.The application is unopposed and no representations were made by the respondent. 7.This court is alive to the service of the application by the counsel of the applicant, purportedly on the 9th February 2026 in a filed return of service sworn on the 6th February 2026. 8.The court further notes that the service was effected upon the firm M/s G & G Advocates LLP by way of email and no explanation of preferred as to when the said advocates for the Respondents came on record. 9.I further note that service of the application occurred three days after the advocate sworn the affidavit of service and the same is highly irregular and legally untenable. 10.This court is unpersuaded that the application was properly served upon the Respondent. 11.The relief sought is a discretionary relief and owing to the foregoing observations I am unable to find merit in the Application for want of compliance with the court’s directions. 12.I accordingly find the application dated 21st January 2026 to be without merit and the same is dismissed. 13.There shall be no cost order granted in this instance. DELIVERED VIRTUALLY ON THE TEAMS FROM BUSIA ON THIS 19TH DAY OF JUNE, 2026.....................................MOHOCHI S. M.JUDGE