[2009] KEHC 832 (KLR)
The court held that it cannot exercise its discretion to transfer a suit from one court to another if the suit was not competently filed in the first place. Since the applicant failed to satisfy the court that the suit pending before the Kandara Resident Magistrate's Court was properly instituted in a court of...
Source-derived case information.
- Citation
- [2009] KEHC 832 (KLR)
- Parties
- Applicant: Monsanto Kenya Limited; Respondent: Lucia Waceke; Respondent: Amos Njuguna Mungai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 658 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Transfer Suit
- Outcome
- application dismissed with costs
- Judges
- A Ali-Aroni
- Legal Topics
- Transfer of Suits, Territorial Jurisdiction, Pecuniary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monsanto Kenya Limited
Applicant
Lucia Waceke
Respondent
Amos Njuguna Mungai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Transfer Suit
Legal Issues
- 1 Whether the High Court can transfer a suit from a subordinate court that lacks territorial jurisdiction to another court.
- 2 Whether the suit was competently filed in the Kandara Resident Magistrate's Court.
Ratio Decidendi
The court held that it cannot exercise its discretion to transfer a suit from one court to another if the suit was not competently filed in the first place. Since the applicant failed to satisfy the court that the suit pending before the Kandara Resident Magistrate's Court was properly instituted in a court of competent jurisdiction, the application for transfer could not be granted. The court relied on established case law and statutory provisions, emphasizing that both pecuniary and territorial jurisdiction must be present at the time of filing for a transfer to be considered.
Court Disposition
application dismissed with costs
Orders
- The application to transfer the suit from Kandara Resident Magistrate's Court to Chief Magistrate Court at Thika is dismissed.
- Applicant to pay costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Miscellaneous Application 658 of 2009
MONSANTO KENYA LIMITED ……………….…........…………… APPLICANT
VERSUS
LUCIA WACEKE……………………………………………… 1ST RESPONDENT
AMOS NJUGUNA MUNGAI …………….........……………… 2ND RESPONDENT
RULING
The Application before me is a Notice of Motion brought under Order L Rule 1 of the Civil Procedure Rules, Sections 15(a) (b), (c), 18 (b) (ii) and Section 3A of the Civil Procedure Act. The application is supported by the affidavit if Francis Kamau Kithamba and on the grounds of the face of the application. The application is not opposed.
The application seeks to have this honourable court withdraw a suit in the Senior Resident Magistrate Court being case No.95 of 2009 LUCIA WECEKE KAMAU & AMOS NJUGUNA MUNGAI suing as legal representatives of the estate of JOHN MWANGI KAMAU(deceased) vs. MONSANTO KENYA LIMITED at Kandara and transfer the same to Chief Magistrate Court at Thika for final disposal, and costs of the application.
The application is brought upon the grounds that the Kandara Resident Magistrate’s court has no territorial jurisdictions to entertain the suit. Section 18 of the Civil Procedure Act grants the High Court the power to withdraw a suit pending in a subordinate court and to transfer the same for disposal to another court. The court must be satisfied that the suit was filed in a court of competent jurisdiction in the first instance before transferring the same to another court of competent jurisdiction In the case of Omwoyo vs. African Highlands & Produce Company Ltd [2002] 1 KLR 698 at page 699 Ringera J. (As he then was ) held:-
“ That being the case, the sole issue for determination here is whether this court has jurisdiction to transfer a suit from a court which is seized of it but has no jurisdiction to determine it to a court vested with jurisdiction. (In) Kagenyi – vs- Misiramo & Another [1968] E.A 48, Sir Udoma Udoma CJ held in relation to Section 18 of the Uganda Civil Procedure Act- a provision which is in pari material with section 18 of our code – that an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first place brought to a court which has jurisdiction to try it. In that case the appellant had sought to transfer a suit from the magistrates’ court to the High Court on the basis that the claim exceeded the pecuniary jurisdiction of the lower court. And in the very early case of Mendonca –vs- Rodrigues [1906-1908] 251 KLR Hamilton J held that the High Court did not have power to order a transfer of a suit on the ground of want of jurisdiction only. The case involved a dispute which was outside the local jurisdiction of the lower court in which it had been filed. The principle of law to be gleaned from this authorities is that the High Court cannot exercise its discretion to transfer a suit from one court to another if the suit is filed in the first place in a court which does not have pecuniary and/or territorial justification to try it.”
In the circumstances I find that the applicant has not satisfied this court that the suit now pending before the Kandara Court was competently filed in the said court and therefore I am unable to grant the application and dismiss the same with costs.
Dated and delivered at Nairobi this 13th day of November, 2009.
ALI- ARONI
JUDGE