[2010] KEHC 181 (KLR)
The court held that Section 17 of the Civil Procedure Act does not empower a plaintiff to apply for the transfer of a suit from one subordinate court to another. The provision is explicit that only a defendant or the court on its own motion may make such an application. Since the application was made by the...
Source-derived case information.
- Citation
- [2010] KEHC 181 (KLR)
- Parties
- Plaintiff: Livingstone W. Joel; Defendant: Kenya Literature Bureau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 1070 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed
- Judges
- CN Mugo
- Legal Topics
- Transfer of Suits, Jurisdiction of Courts, Labour Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Livingstone W. Joel
Plaintiff
Kenya Literature Bureau
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the High Court can transfer a suit from the Chief Magistrate's Court to the Industrial Court on the application of the plaintiff.
- 2 Whether Section 17 of the Civil Procedure Act permits a plaintiff to apply for transfer of a suit.
- 3 Whether the Chief Magistrate's Court has jurisdiction to hear and determine the suit.
Ratio Decidendi
The court held that Section 17 of the Civil Procedure Act does not empower a plaintiff to apply for the transfer of a suit from one subordinate court to another. The provision is explicit that only a defendant or the court on its own motion may make such an application. Since the application was made by the plaintiff, the court found that the provision had not been properly invoked and therefore declined to exercise its discretion to transfer the suit. The application was dismissed as a result.
Court Disposition
application dismissed
Orders
- The application to transfer the suit from the Milimani Commercial Court to the Industrial Court is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
MISC. CASE NO. 1070 OF 2009
LIVINGSTONE W. JOEL ...................................................................................................................................... PLAINTIFF
VERSUS
KENYALITERATURE BUREAU .......................................................................................................................... DEFENDANT
R U L I N G
The Applicant in the Chamber Summons dated 5th November, 2009 is the Plaintiff in Milimani CMCC No. 5767 of 2003, the subject matter of the application. He has moved the Court under Sections 17of theCivil Procedure ActandSections 12and15 of the Labour Institutions Act,No. 12 of 2007.
The application seeks an order of this Court to transfer the above-stated suit from the Milimani Commercial Court to the Industrial Court for expeditious disposal. It is supported by the affidavit of Susan Omwake, Advocate for the Applicant in which she depones to the facts supporting the grounds upon which the application is based, which are:
(a)That the Industrial Court has the pecuniary jurisdiction to hear and determine the suit.
(b)That it is in the interests of justice that the suit be transferred in order that it is expeditiously heard and determined.
(c)That the Defendant will not be prejudiced in any way if the suit is transferred.
The application is opposed on the strength of Grounds of Opposition filed on 23rd November, 2009 to the effect that;
1. The application is bad in law.
2. That the Chief Magistrate’s Court has jurisdiction to hear and determine the suit.
3. That the application is frivolous, vexatious and an abuse of the process of Court.
The Respondents did not attend at the hearing of the application, despite being put on notice and the same proceeded ex parte.Counsel for the Applicant submitted that she relied solely on the supporting affidavit, and that the Grounds of Opposition filed herein were devoid of merit.
Section 17of theCivil procedure Actendows the High Court with the discretionary power to transfer, either on the application of any Defendant or of the Court of its own motion, any suit instituted in any subordinate Court, where the same may be instituted in any one or more subordinate Courts, and to determine which of the several Courts having jurisdiction shall determine the suit. The said provision reads as follows:
“17. Where a suit may be instituted in any one of two or more subordinate Courts, and is instituted in one of those Courts, any Defendant after notice to the other parties, or the Court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another Court; and the High Court after considering the objections, if any, shall determine in which of the several Courts having jurisdiction the suit shall proceed.”
It is not disputed that the Chief Magistrate’s Court has jurisdiction to hear and determine the suit. However, considering that the power to transfer suits under Section 17of theCivil Procedure Actdoes not extend to applications made by Plaintiffs, I am of the considered view that the said provision has not been properly invoked. For that reason I am unable to exercise my discretion in favour of the Plaintiff/Applicant. The application is dismissed with no order as to costs.
SIGNED and DELIVERED at NAIROBI this 10th day of December, 2010.
M.G. MUGO
JUDGE
In the presence of:
Mr. Ataka holding brief for M/S OmwakweFor the Applicant
No appearance For the Respondent