[2023] KEHC 25009 (KLR)

Kwale County Assembly Service Board v Mjape (Miscellaneous Civil Application E188 of 2023) [2023] KEHC 25009 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25009 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application E188 of 2023

DKN Magare, J

November 6, 2023

Between

Kwale County Assembly Service Board

Applicant

and

William Lugwe Mjape

Respondent

Ruling

1. This is an application made to transfer Kwale RMCC No 70 of 2021 to the Mombasa Law Court. The reason being that the court as currently constituted the jurisdictional limit is 10,000,000/=.

2. Section 18 of the Civil ProcedureAct provides as doth: -“18. Power of High Court to withdraw and transfer case instituted in subordinate court (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—

(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”

3. In the case of Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] eKLR, the court of Appeal, stated as doth: -“Generally speaking and on the authority of the Supreme Court decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, a court can only exercise that jurisdiction that has been donated to it by either the Constitution or legislation or both. Therefore it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Jurisdiction is in the end everything since it goes to the very heart of a dispute. Without it, the court cannot entertain any proceedings and must down its tools. See the Owners of the Motor Vessel Lilian ‘S’ v. Caltex Kenya Limited (1989) KLR 1. This Court in Adero & another v Ulinzi Sacco Society Limited [2002] 1 KLR 577, quite sufficiently summarised the law on jurisdiction as follows;“1………….. 2. The jurisdiction either exists or does not ab initio and the non constitution of the forum created by statute to adjudicate on specified disputes could not of itself have the effect of conferring jurisdiction on another forum which otherwise lacked jurisdiction.

3. Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.

4. Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

..We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:”

4. In the case of Pamoja Women Development Programme & 3 others v Jackson Kihumbu Wangombe & another [2016] eKLR, Prof Joel Ngugi, as he then was stated as doth: -“15. Kenyans’ objectives was not to set up judicial booby traps for unsuspecting litigants who after timeously filing and pleading their cases would have to undergo a technical game of jurisdictional Russian Roulette to determine if their case will survive or be struck out. While Kenyans did not wish to give litigants a blank cheque to file suits in the wrong fora in bad faith, they intended to give parties a fair chance to have their cases determined on their merits. This intention is defeated if, in close cases filed in a court of cognate jurisdiction but where the parties subsequently or the court makes a determination that the particular court in which the matter has been filed does not havethe requisite jurisdiction and that the requisite jurisdiction lies in a cognate court, the court responds by striking out the suit and requiring the parties to file a fresh the suit. I see no useful purpose that is served by this other than punishing a party that acted in good faith. This would be an appropriate course of action where it can be shown that the Plaintiff acted in bad faith in suing in the wrong court but not where the Plaintiff acted in good faith. There has been no allegation or showing that the plaintiff acted in bad faith here. Indeed, it is the Court and the defendants who raised the issue for the first time and upon reflection the plaintiff concluded that jurisdiction probably lies in the Environment and Land Court. They then, without any delay, made the current application.”

5. I am satisfied that the application is made in good faith and is merited.

6. However, in the intervening period, the High Court was established in Kwale. In order to avoid expenses of traveling to Mombasa. I direct that the application be allowed out to the extent stated below. This is based on the Judicial Philosophy of access to justice.

Determination 7. I therefore make the following orders: -

a. Kwale PMCC No 70 of 2021 - Kwale County Assembly versus William Lugwe Mjape be withdrawn and transferred to the High Court of Kenya at Kwale.b. The matter be mentioned for direction before me on November 27, 2023.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. Ruling delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:-Mr. Ireri for the ApplicantNo appearance for RespondentCourt Assistant - Brian