[2022] KEHC 1275 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL SUIT NO. 262 of 2019

MARTIN ODHIAMBO....................................................APPLICANT

VERSUS

GEORGE GOBANGA..................................................RESPONDENT

R U L I N G

1. The Application is brought under a Certificate of Urgency. The Application is said to be urgent because there is a suit in the Chief Magistrate’s Court in Kakamega CMCC No. 190 of 2019 George Gobanga vs Martin Odhiambowhich continues to be litigated and the Applicant herein has not been afforded a fair trial or process.

2. The Application is brought by a Notice of Motion “Under Article 165 (3) & (6) of the Constitution, Section 17 & 18 of the Civil Procedure Act; Section 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule (1) of the Civil Procedure Rules and all other enabling provisions of the law”.The Application seeks the following Orders:

“1. THAT this application be certified urgent and the same be heard ex parte in the first instance.

2. THAT Civil Suit Kakamega CMCC No. 190 of 2019 – GEORGE GOBANGA –vs- MARTIN ODHIAMBO be transferred to Kisumu Chief Magistrate’s Court for hearing and final determination.

3. THAT costs for this application be provided for.

3. The Application is grounded on the following:

”1. THAT sometime on the 30th July 2019, the Respondent herein (the Plaintiff in the main suit) filed a suit against the Applicant in the Kakamega Chief Magistrate’s Court, Kakamega CMCC. No. 190 of 2019 seeking various orders including a judgment against the Applicant for breach of agreement and payment of the loaned amount together with penalties.

2. THAT the Respondent moved ex-parte and obtained ex-parte judgment against the Applicant.

3. THAT further in execution of the ex-parte decree the respondent through Pave Auctioneer moved to the Applicant’s business premises at Kisumu for proclamation.

4. THAT the Applicant has since filed an application in Court challenging the ex-parte proceedings on among many reasons, lack of service of the summons to enter appearance and has obtained interim orders for stay of execution.

5. THAT the Applicant’s application to set aside the ex-parte judgment is pending before the Court.

6. THAT the Applicant resides and work for gain in Kisumu town.

7. THAT the Respondent resides and work for gain in Nairobi City.

8. THAT it is a legal requirement that civil suits should be instituted in the Court near where the defendant resides and or works for gain.

9. THAT the Respondent by instituting the suit at Kakamega Chief Magistrate’s Court while neither of the parties to the suit resides nor works for gain at Kakamega is malicious and intended to cause unreasonable and unnecessary inconvenience to the Applicant.

10. THAT this Court should transfer the suit from Kakamega Chief Magistrate’s Court to Kisumu Chief Magistrate’s Court, a Court situated near the Applicant’s place of work and residence.

11. THAT such transfer would ensure litigation convenience and would promote the overriding objective of the civil litigation of affordable resolution of the civil disputes.

12. THAT this application has been brought without any delay and it is in the interest of justice that the orders sought in this application should be granted to meet the ends of justice.

4. The Application is Supported by the Affidavit of the Applicant. In it he states that the Respondent filed a suit against him viz Kakamega Chief Magistrate’s Court Civil Case No 190 of 2019. A copy of the Plaint is exhibited and it shows that the suit was filed around 30th July 2019 asking for damages for breach of agreement and repayment of a loan amount together with Penalties. The Applicant says that the Respondent obtained “ex parte judgment” against him. That means it was judgment in default. The Applicant states that he was not served and therefore did not enter an appearance. The judgment obtained was then executed through Pave Auctioneers.

5. The aforesaid Auctioneers then proclaimed against the Applicant’s business in Kisumu. There is currently an application to set aside the ex parte judgment pending before the Court in Kakamega. At paragraph 7 the Applicant states;

“7. THAT I have been advised by my advocate on record which advice I verily believe to be true that it is a legal requirement that civil suits should be instituted in the Court near to where the defendant resides and or works for gain.”.

The Applicant goes on to complain that neither he nor the Respondent/ Plaintiff resides or works in Kakamega and therefore there is no sense in the suit remaining in Kakamega and therefore the Plaintiff was malicious and unreasonable acting with the intention to cause inconvenience. The Applicant is praying for the suit to be transferred to Kakamega as that is where he lives and the place of his work. He believes transfer would promote access to justice and further the overriding objective.

6. The Applicant states that the Application was brought without delay. However, he does not say when he became aware of the judgment. Exhibit M)-2b is an order dated 26th September 2019 whereby the application dated 25th September 2019 was heard and the following order made THAT:

“1. The matter is hereby certified urgent.

2. Interim orders of stay of execution and sale of the properties attached and further ex-parte proceedings is hereby issued pending the hearing and determination of this application inter-partes.

3. Applicant to serve the respondent for inter-partes hearing on 10/10/2019

The outcome of that inter partes hearing is not known.

7. The Applicant states that he has a good defence to the suit, namely that he never entered into a money lending agreement with the Plaintiff. It is further argued that the attachment was irregular and illegal (unlawful) because the auctioneer has a license to work only in the Kakamega region.

8. At paragraph 12 the Applicant states that “the plaintiff will not be prejudiced in any way if the further ex-parte proceedings are stayed and set aside since they will have another change to prosecute their case in a fair and transparent manner before this court so as to have the issues determined on merit and with finality.”.

9. The Plaintiff/Respondent had not filed a replying affidavit as stated, but has, in fact filed Grounds of Opposition on 20th February 2020. He relies on the following grounds:

“1. THAT as at the time of the applicant and respondent entered into the money lending agreement dated 26/2/2018 the defendant was a resident of Kakamega town.

2. THAT the fact that the agreement was reduced into writing while the two parties were in Nairobi for business before an advocate practicing in Nairobi BUT that did not/does not expressly imply that the parties herein reside in Nairobi County.

3. THAT after the default in payment of the loan amount owing the Respondent moved to Court to seek legal remedy thus he would not have chosen only Kakamega for purposes of litigation but because the applicant is known to reside in Kakamega County.

4. THAT the Respondent as at the time of filing Kakamega CMCC 190/2019 believed and still knew that the Applicant resides in Kakamega.

5. THAT if at all currently the Applicant resides in Kisumu then he must have moved there in the pendency of the suit herein.

6. THAT it is the Applicant who now wants the current suit transferred to Kisumu to his advantage after he shifted to stay there as he alleges to live there and therefore his prayers as sought herein is not genuine/in good faith.

7. THAT there is no proof filed herein with his application to proof his place of residence being at Kisumu not even a sworn affidavit by the Applicant to that effect.

8. THAT it is in the interest of justice that the suit remains in Kakamega Magistrate’s Court, be heard on merit and finally determined.

9. THAT the only known engagement the applicant is known for that holds him in Kisumu is his business in which an attachment by the auctioneers was effected.

10. THAT the applicant is taking this Court and the Defendant for granted by giving frivolous and ridiculous reasons.

11. THAT the application is therefore frivolous, weak and an abuse of the court process and should be dismissed forthwith.

10. The Applicant has countered that with a Supplemental Affidavit where he states :

1. THAT I am a male adult of sound mind the Plaintiff herein fully conversant with the matters giving rise to this suit hence competent to swear this affidavit.

2. THAT I have read and understood the grounds of opposition filed by the Respondent herein and wish to respond to it as follows.

3. THAT contrary to paragraph 3, 4 and 5 I know of my own knowledge that all material time relevant to this suit I have been residing and working for gain in Kisumu and at no particular time have I resided or worked for gain in Kakamega.

4. THAT I know of my own knowledge that I have filed the application herein in good faith since by the said suit remaining in kakamega Chief Magistrate’s Court I will stand to suffer unreasonable and unnecessary inconvenience.

5. THAT what is deposed to hereinabove is true to the best of my knowledge and belief save information the sources whereof have been set out and specified.

11. It is clear from the foregoing that the Plaintiff is seeking repayment of a debt. The Defendant denies the debt. The Plaintiff obtained judgment in default which he proceeded to execute. The Plaintiff/Respondent insists the Applicant was resident in Kakamega, yet the agreement was executed in Nairobi. The Applicant insists he lives and works in Kisumu. Neither Party has produced any documentary evidence to support their claim as to residence.

12. The First issue to address is whether the Court has is whether it has the jurisdiction to grant the orders prayed for. In relation to the Application for a transfer, Section 18 of the Civil Procedure Act Cap21 provides:

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.

13. The next issue is whether the Suit was instituted in the correct level of Court. Section 11 of the Civil Procedure Act Section 11 provides:

11. Court in which suit to be instituted

Every suit shall be instituted in the court of the lowest grade competent to try it, except that where there are more subordinate courts than one with jurisdiction in the same district competent to try it, a suit may, if the party instituting the suit or his advocate certifies that he believes that a point of law is involved or that any other good and sufficient reason exists, be instituted in any one of such subordinate courts: Provided that— (i) if a suit is instituted in a court other than a court of the lowest grade competent to try it, the magistrate holding such court shall return the plaint for presentation in the court of the lowest grade competent to try it if in his opinion there is no point of law involved or no other good and sufficient reason for instituting the suit in his court; and (ii) nothing in this section shall limit or affect the power of the High Court to direct the distribution of business where there is more than one subordinate court in the same district.

14. In addition, the Court should have regard to Section 14 of the Act which provides:

“14. Suit for compensation for wrong to the person or movables

Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of those courts.”.

15. Other suits to be instituted where defendant resides or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction— (a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or (b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or (c) the cause of action, wholly or in part, arises

16. Therefore, what is certain is that this is a debt action where the Plaintiff asserts the debt arises from a written agreement. That agreement was executed in Nairobi. At the time of the Agreement and subsequently, the Plaintiff/Respondent believed that the Applicant/Defendant lived in Kakamega. He was therefore justified in filing his suit in the Chief Magistrates Court in Kakamega. Judgment in default was obtained and the Defendant did nothing until there was proclamation and possibly attachment. First, he sought a stay and then he sought transfer. It seems he has omitted the step of applying from a transfer from the Court seised of the matter and moved straight to the High Court. The Plaintiff/Respondent is opposed to the transfer. However, it is clear there is no prejudice to him save that his current Advocates are based in Kakamega. Previously, he had acted in person. It seems to this Court that the geographical location of the suit between Kakamega or Kisumu does not cause him prejudice.

17. An application for transfer must be brought as early as possible. Here it was brought after execution. The Court must therefore consider whether the timing of the Application is justified or if it is designed to delay. To that extend the answer lies in the Plaint. At paragraph 2 of the Plaint it is pleaded that “The defendant is also a Kenyan male adult of sound whose contact of service shall be through the plaintiff.”. Although the Plaintiff as a litigant in person cannot be criticised, that pleading has the effect that the Defendant was not properly informed of the suit against him. He is entitled to a fair hearing. That does not seem to have happened as he was not aware of the suit. Further, he would not have been served with a notice of entry of judgment.

18. In the circumstances, it is in the interests of justice that he have an opportunity to defend the suit. In the circumstances, it is Ordered that Kakamega Civil Suit CMCC No 190 of 2019 Between George Gobanga and Martin Odhiambo be and is hereby transferred to the Chief Magistrate’s Court in Kisumu for hearing and final determination. In order to avoid a scenario where the Applicant having obtained a stay loses interest in the suit proceeding. It is further ordered that, if there are no steps taken in this application and/or suit for a period of 6 months, the stay will be lifted and the Plaintiff/Respondent will be at liberty to enforce his judgment.

Order accordingly.

FARAH S. M. AMIN

JUDGE

SIGNED DATED AND DELIVERED THIS THE 3RD DAY OF MARCH 2022 IN KAKAMEGA HIGH COURT AND VIRTUALLY

In the Presence of

Court Assistant: Clement Okoit

Applicant: Parties on line from Kisumu

Respondent: