[2005] KEHC 861 (KLR)
The court held that the Principal Magistrate at Kitui did not transfer the suit to Machakos but merely returned the plaint to the plaintiff due to lack of geographical jurisdiction. This act amounted to withdrawal and termination of the suit at Kitui. The subsequent filing of the plaint at Machakos constituted a...
Source-derived case information.
- Citation
- [2005] KEHC 861 (KLR)
- Parties
- Plaintiff: Lotu Muthwi Muli; Defendant: Germany Agro Action
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Revision Case 1 of 2005
- Procedural Posture
- Revision Case / Ruling on Jurisdictional Objection and Administrative Orders
- Outcome
- Complaint dismissed; suit at Machakos to proceed.
- Legal Topics
- Jurisdiction Objection, Transfer of Suit, Administrative Orders, Filing Fees, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lotu Muthwi Muli
Plaintiff
Germany Agro Action
Defendant
Procedural Posture
Revision Case / Ruling on Jurisdictional Objection and Administrative Orders
Legal Issues
- 1 Whether the Principal Magistrate at Kitui had jurisdiction to transfer the suit to another court.
- 2 Whether the order returning the plaint amounted to withdrawal and termination of the suit at Kitui.
- 3 Whether the subsequent filing at Machakos constituted a fresh suit or a continuation of the original suit.
Ratio Decidendi
The court held that the Principal Magistrate at Kitui did not transfer the suit to Machakos but merely returned the plaint to the plaintiff due to lack of geographical jurisdiction. This act amounted to withdrawal and termination of the suit at Kitui. The subsequent filing of the plaint at Machakos constituted a fresh suit, not a continuation or transfer of the original suit. The plaintiff was not required to pay filing fees again, having already paid at Kitui. The order made by the Senior Resident Magistrate at Kitui on 10/5/05 was administrative and had no legal effect on the status of the suit. The complaint by the defendant's advocates regarding the propriety of the proceedings at...
Court Disposition
Complaint dismissed; suit at Machakos to proceed.
Orders
- The complaint by Messrs Mereka & Co. Advocates is dismissed as lacking merit.
- Machakos CMCC No. 374 of 2005 is properly filed and should proceed in accordance with the law.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
REVISION CASE 1 OF 2005
LOTU MUTHWI MULI …………………………………….……………. PLAINTIFF
VERSUS
GERMANY AGRO ACTION …………………………………………. DEFENDANT
R U L I N G
The above suit was originally filed at Kitui as Kitui PMCC No. 260 of 2002. A preliminary objection that the suit had been filed in court without proper geographical jurisdiction was raised, argued and finally accepted by Kitui Principal Magistrate’s Court who pointed out the courts which in his opinion, had geographical jurisdiction. Instead of dismissing the suit, the Principal Magistrate who heard the preliminary objection, ordered the plaint to be returned to the plaintiff with a notification thereon of the court fees which had been paid to file the suit at Kitui Law Courts. This notification as I understand it, was intended to assist the plaintiff when he would present the plaint at any other court registry of any of the other courts having the geographical jurisdiction aforementioned, so that he would not be required to pay court fees, the second time, for the same suit.
As I understand from the information from the records, the defendant did not appeal against this decision whose effect was to withdraw the suit from that court and terminate it altogether. On 10/5/05, when the Senior Resident Magistrate E.K. Makori made another order, effectively repeating what the Principal Magistrate M.N. Gicheru had done on 5/3/04, he was in my opinion and decision, merely clarifying the earlier order. Indeed his act was not even judicial. It was administrative, effectively executing the earlier order. In my further view, Kitui PMCC No. 260 of 2002 ceased to exist on 5/3/04, when M.N. Gicheru, P.M. ordered the return of the plaint.
In my further understanding also, the suit Kitui PMCC No. 260 of 2002, while it existed before 5/3/2002, was a substantive suit, filed in inappropriate court because of the geographical jurisdiction. It only needed to be lawfully transferred to the geographically appropriate court by the High Court acting in an application filed by either party seeking such transfer, or acting on its own motion under Section 18 of Civil Procedure Act.
I do not therefore agree with any view to the effect that the Senior Resident Magistrate, who had no jurisdiction, transferred the suit to Machakos Chief Magistrate’s Court. This is because, as earlier stated, the suit did not at that moment in time exist, the same having been withdrawn when the plaint was ordered returned on 5/3/02. Furthermore, when the plaintiff filed his returned plaint at Machakos Law Court as CMCC No. 374 of 2005, he was filing a fresh suit except that he was excused from paying filing fees a second time, having paid it through Kitui vide Kitui receipt No. M100870 for Kshs.2,135/=.
In conclusion therefore, even if the order 10/5/05, by Kitui Senior Resident Magistrate was probably made ex parte, the same had no legal effect, was only administrative or executive of the earlier order, and did not prejudice the defendant in particular. I accordingly hold that Messrs Mereka & Co. Advocate’s complaint in their letter to the Executive Officer, Machakos Law Courts, has no merit. I further hold that Machakos CMCC No. 374 of 2005 was properly filed and should proceed in accordance with the law. It is so ordered.
Dated at Machakos on 26th day of October, 2005.
D.A. ONYANCHA
JUDGE