[2012] KEHC 5174 (KLR)
The court determined that the Chief Magistrate Court had jurisdiction to try the negligence suit, with the only limitation being the quantum of damages it could award. The fact that the damages sought exceeded the magistrate's pecuniary jurisdiction did not render the court entirely without jurisdiction to try the...
Source-derived case information.
- Citation
- [2012] KEHC 5174 (KLR)
- Parties
- Applicant: Moses Onyango Okech (suing as legal representative of the estate of Boniface Omondi Onyango); Respondent: Ernie Campbell Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 12 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate Court to High Court
- Outcome
- application allowed
- Legal Topics
- Transfer of Suits, Pecuniary Jurisdiction, Negligence Claims, Damages Quantification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Onyango Okech (suing as legal representative of the estate of Boniface Omondi Onyango)
Applicant
Ernie Campbell Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate Court to High Court
Legal Issues
- 1 Whether the High Court should grant an order to transfer the suit from the Chief Magistrate Court to the High Court due to the claim exceeding the magistrate's pecuniary jurisdiction.
- 2 Whether a suit filed in a court without pecuniary jurisdiction can be transferred to a court with appropriate jurisdiction.
Ratio Decidendi
The court determined that the Chief Magistrate Court had jurisdiction to try the negligence suit, with the only limitation being the quantum of damages it could award. The fact that the damages sought exceeded the magistrate's pecuniary jurisdiction did not render the court entirely without jurisdiction to try the matter. The High Court, following the reasoning in Beatrice Awino Odendo v Konoike Veidekke Murray and Roberts JV Sondu Miriu Hydro Power Project and distinguishing the Kagenyi v Musiramo line of authority, held that the proper approach is to allow transfer where the lower court has jurisdiction over the subject matter but is limited in the quantum it can award. The court found...
Court Disposition
application allowed
Orders
- The suit CMCC 7928 of 2008 is transferred from the Chief Magistrate Court at Milimani to the High Court at Nairobi.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HC MISC APPLICATION NO. 12 OF 2012MOSES ONYANGO OKECH (suing as legal representativeOf the estate of
Boniface Omondi Onyango).......................................................... APPLICANT/PLAINTIFF
VERSUS
ERNIE CAMPBELL CO. LTD......................................................RESPONDENT/DEFENDANT
RULING
The applicant filed a suit in Chief Magistrate Court at Milimani on 16/12/2008. The suit is in negligence and the plaintiff is seeking damages.
On 17/1/2012 the plaintiff filed a chamber summons under sections 18 and 3A Civil Procedure Act seeking order to transfer the said suit No.CMCC 7928 of 2008 from the Chief Magistrate to the High Court on the grounds that it was filed inadvertently in that court and that the sum of damages has exceeded the pecuniary jurisdiction of Chief Magistrate Court and therefore the interest of justice demands that the suit be withdrawn to be tried by the High Court. The supporting affidavit is sworn by applicant Moses Onyango Okech. The applicant shows that he is suing in capacity of the legal representative of deceased who fell in a swimming pool and met his death due to the negligence of the defendant.
He swears that he has been advised by his advocate to withdraw this suit from the lower court to High Court where the jurisdiction is higher than in the lower court.
The advocate has quantified the possible damages award and has arrived at Kshs.6,200,000/= quoting 5 authorities. In support of such assessments.
Regarding this application the applicant has cited HCC Misc. Application No.94 of 2005 Beatrice Awino Odendo –vs- Konoike Veidekke Murray and Roberts J V Sondu Miriu Hydro Power Project in which it was held in a case where a court had jurisdiction to try the suit and all a party seeks is to receive more compensation that such a court can award does not mean that the suit is filed in a court without jurisdiction. The issues for consideration for transfer of suits are the questions of expenses of parties and witness and interest of justice. The questions of undue hardships and balance of convenience do not arise since both courts are situated in the same premises. The court made order of transfer.
There was opposition in that the lower court case was instituted in a court without jurisdiction and the applicant has already admitted filing his claim in lower court which does not have the pecuniary jurisdiction to award damages. The respondent has cited five authorities. Considering the first authority Judicial Hints by Kuloba says that the transfer will only be ordered where the suit was firstly filed in a court with jurisdiction. The second authority is the Kagenyi –vs- Musiramo & Another where it was held that an order for transfer of a suit to another court cannot be made unless the suit has been in first instance brought to a court which has jurisdiction.
The third authority Boniface W. Mbuyu –vs- Mary Nyeri – Another 639 of 2005the issue for transfer was that the value subject matter is above pecuniary jurisdiction of Chief Magistrate Court. The court Ojwang J followed the decision in Kangenyi case (above noted) and declined to grant order for transfer.
The 4th authority is Misc. Application No. 3 of 2006 at Nakuru Private Development Co. Ltd –vs- Rebecca Ngonyo & Another. The basis of the application was the value of subject matter which was valued at Kshs.5000. 000 higher than the jurisdiction of Chief Magistrate of Nakuru. The court rejected the prayer for transfer.
In this case I find the just way is to follow the Ruling of Tanui J now (retired) in the case of HCCC Misc. Appl. 94 of 2005 aforementioned where the only reason for transfer order was sought was that Chief Magistrate did not have pecuniary jurisdiction otherwise he had jurisdiction to try the case but the applicant wanted to be paid more sum than the Chief Magistrate could award. The Judge relied on the case of Kangenyi –vs- Musiramo where the Magistrate jurisdiction was limited to 1000/= in Civil matter. The Hon. Judge state that the jurisdiction of court of Chief Magistrate in Kisumu Court was not limited in the Way.
“The Chief Magistrates court has jurisdiction to try the present suit. All the plaintiff proposes is to transfer the case to this court so that they would be paid more compensation for general damages that they would get at the Chief Magistrate court.”
The judge found that the objection that the lower court had no jurisdiction was not valid and he granted a transfer order.
In my view the Chief Magistrate Court in Kenya has jurisdiction to try negligence cases and the limit is the quantum of damages that could be awarded. This is administrative power not on the issue of whether or not they could try the cases. They had jurisdiction to hear and determine the liability and the amount of damages.
The lower court and the high court are in the same premises, here therefore consideration of hardship and expenses of parties witnesses and balance of convenience are not involved. I therefore find that when all things are considered the application is reasonable and I grant orders sought. I allow the application and grant orders as sought.
Costs shall be in the cause.
Dated and delivered this 23rd February, 2012.
J.N. KHAMINWA
JUDGE