[2014] KEHC 3966 (KLR)
The court found that the applicants both reside and carry on business in Mombasa, and that the Civil Procedure Rules permit a suit to be instituted where the defendants reside or carry on business. Although the cause of action arose in Miranga Village, Ndhiwa District (within Homa Bay Courts' jurisdiction), the suit...
Source-derived case information.
- Citation
- [2014] KEHC 3966 (KLR)
- Parties
- Applicant: Moses Otieno Ngau Alias Rukhi Moses; Applicant: Florence Achola Otieno; Respondent: George Opiyo Oile
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 8 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application allowed.
- Judges
- JV Juma
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Children Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Otieno Ngau Alias Rukhi Moses
Applicant
Florence Achola Otieno
Applicant
George Opiyo Oile
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the court should transfer Winam Children’s Case No. 3 of 2014 to Mombasa Chief Magistrate’s Court.
- 2 Whether the Mombasa Children’s Court should be directed to hear and determine the case.
Ratio Decidendi
The court found that the applicants both reside and carry on business in Mombasa, and that the Civil Procedure Rules permit a suit to be instituted where the defendants reside or carry on business. Although the cause of action arose in Miranga Village, Ndhiwa District (within Homa Bay Courts' jurisdiction), the suit was instituted in Winam, Kisumu District, without justification. The court concluded that the application for transfer had merit and allowed the transfer to Mombasa Chief Magistrate’s Court, directing the Mombasa Children’s Court to hear and determine the matter.
Court Disposition
Application allowed.
Orders
- Winam Children’s Case No. 3 of 2014 is transferred to Mombasa Chief Magistrate’s Court.
- The Children’s Court sitting at Mombasa is directed to hear and determine the case in accordance with the law.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL MISC. APPLICATION NO. 8 OF 2014
MOSES OTIENO NGAU AliasRUKHI MOSES
FLORENCE ACHOLA OTIENO………………………..…APPLICANTS
VERSUS
GEORGE OPIYO OILE……...……………….…………..…RESPONDENT
RULING
Before court is the notice of motion dated 8th April, 2014 seeking inter alia the following orders
“1. The Honourable court be pleased totransfer Winam Children’s Case No. 3 of 2014 to Mombasa Chief Magistrate’s Court.
2. The Children’s Court sitting at Mombasa be directed to hear and determine the above cited case in accordance with the law.”
The application for the transfer of this case from Winam to Mombasa was opposed.The application was disposed of by way of written submissions.
I have read and have carefully considered the submissions on record. The applicants have annexed documents i.e. licences to prove that they do carry on business in Mombasa where they ordinarily reside. The Civil Procedure Rules do provide that a suit may be instituted either where
The cause of action arose.
The defendants ordinarily reside or
The defendants carry on business.
The defendants (applicants) herein do ordinarily reside and carry on business in Mombasa. The cause of action is said to have arisen in Miranga Village, Ndhiwa District which is within the local jurisdictional limits of Homa Bay Courts.Why then was the suit instituted in Winam which is in Kisumu Distrct.I am satisfied that this present application have merit and the same is hereby allowed in terms of prayers (1) and (2). Costs in the cause.
Dated and delivered in Mombasa this 16th day of July, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Odero for Applicants
Ms. Mwatu h/b Mr. Mbango for Respondent
Court Clerk Mutisya