[2019] KEHC 6700 (KLR)
The court held that the mere fact that a dispute involves commercial parties or transactions does not automatically render it a purely commercial matter suitable for transfer to the Commercial and Admiralty Division. The pleadings revealed allegations of fraud, impersonation, misrepresentation, and theft, which...
Source-derived case information.
- Citation
- [2019] KEHC 6700 (KLR)
- Parties
- Plaintiff: Lavington Security Limited; Defendant: Consolidated Bank of Kenya; Defendant: Lavington Guards Services Limited; Defendant: Emmanuel Maswach Chelimo; Defendant: Simon Kipkorir Taiget
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 241 of 2017
- Procedural Posture
- Civil Case / Ruling on Application for Transfer of Suit Between Divisions
- Outcome
- Application for transfer dismissed. Costs awarded to the plaintiff.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Transfer of Suit, Division Jurisdiction, Commercial Disputes, Fraud Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lavington Security Limited
Plaintiff
Consolidated Bank of Kenya
Defendant
Lavington Guards Services Limited
Defendant
Emmanuel Maswach Chelimo
Defendant
Simon Kipkorir Taiget
Defendant
Procedural Posture
Civil Case / Ruling on Application for Transfer of Suit Between Divisions
Legal Issues
- 1 Whether the suit should be transferred from the Civil Division to the Commercial and Admiralty Division of the High Court.
- 2 Whether the nature of the dispute is purely commercial or involves additional elements such as fraud and impersonation.
Ratio Decidendi
The court held that the mere fact that a dispute involves commercial parties or transactions does not automatically render it a purely commercial matter suitable for transfer to the Commercial and Admiralty Division. The pleadings revealed allegations of fraud, impersonation, misrepresentation, and theft, which extend beyond the scope of a standard commercial dispute. The divisions of the High Court are administrative and do not limit the court's substantive jurisdiction. Therefore, the matter is properly before the Civil Division, and there is no sufficient basis to warrant its transfer. The application for transfer was dismissed, and the parties were directed to comply with pre-trial...
Court Disposition
Application for transfer dismissed. Costs awarded to the plaintiff.
Orders
- The application to transfer the suit to the Commercial and Admiralty Division is dismissed.
- The parties shall comply fully with Order 11 of the Civil Procedure Rules within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 241 OF 2017
LAVINGTON SECURITY LIMITED....................................PLAINTIFF
VERSUS
CONSOLIDATED BANK OF KENYA.........................1ST DEFENDANT
LAVINGTON GUARDS SERVICES LIMITED........2ND DEFENDANT
EMMANUEL MASWACH CHELIMO......................3RD DEFENDANT
SIMON KIPKORIR TAIGET.....................................4TH DEFENDANT
RULING
The plaintiff filed this case against the defendants for loss of funds occasioned by the defendants jointly and severally, general damages for conversion, fraud, negligence and breach of duty as well as trust. The foundation of those prayers is to be found in the body of the plaint whereby it was alleged the defendants jointly and severally, by their fraudulent conduct caused the plaintiff a loss of Kshs. 179,478,050. 29 particulars of which have been provided in paragraph 22 of the plaint. The defendants have denied the plaintiff’s claim in their respective defences.
Subsequently, the 1st defendant filed an application to have the matter transferred from the Civil Division to the Commercial and Admiralty Division on the premise that this is a commercial matter citing rule 7 of the classification of Commercial and Tax Division matters, 1997. The 2nd and 3rd defendants support the 1st defendant’s application while the plaintiff opposes the same.
The parties agreed that the application shall be determined on affidavit evidence. This court is aware of the classification of commercial matters aforesaid by the Chief Justice. These were formulated to facilitate expeditious disposal of commercial matters which then, and even today, were said to have taken too long to be determined. The Commercial and Tax Division like all other divisions of the High Court, is an administrative division with administrative directions, not jurisdiction, as may loosely be understood, to determine matters filed therein. It remains a division of the High Court, which under Article 165 (2) (3) (a) has unlimited original jurisdiction in Criminal and Civil matters. A commercial dispute does not cease to be a civil matter just because it is lodged in the commercial division. More importantly however, going by the pleadings the defendants have been accused by the plaintiff of impersonation, misrepresentation, fraud and theft which can be discerned from the plaint and the prayers set out therein.
By any standards, this cannot be purely a commercial dispute even if the 1st defendant is accused of being the conduit used in the whole process. I have looked at the authorities cited, and I am persuaded that this matter is properly before the Civil Division and shall not be transferred. That being the case and considering that the pleadings have been crossed, the parties shall now comply fully, if they have not done so, with Order 11 of the Civil Procedure Rules within 30 days from the date of this ruling so that the matter is listed for hearing.
The costs of this application shall be paid to the plaintiff by the defendants.
Dated, signed and delivered at Nairobi this 10th Day of April, 2019.
A.MBOGHOLI MSAGHA
JUDGE