[2024] KEHC 12990 (KLR)
The court found that the applicant failed to substantiate claims of inconvenience, loss, hardship, or expense resulting from the suit proceeding in Nairobi. The cause of action arose in Nairobi, which is a valid determinant for venue under Section 15 of the Civil Procedure Act. Furthermore, the applicant had...
Source-derived case information.
- Citation
- [2024] KEHC 12990 (KLR)
- Parties
- Applicant: Benson Lutta Mukoya; Respondent: Sarah Humbu Karugo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 11 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Divorce Cause
- Outcome
- application dismissed with costs to the respondent
- Judges
- PM Nyaundi
- Legal Topics
- Transfer of Suit, Jurisdiction of Court, Matrimonial Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Lutta Mukoya
Applicant
Sarah Humbu Karugo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Divorce Cause
Legal Issues
- 1 Whether the court should transfer Nairobi Divorce Cause No. E1568 of 2023 to the Chief Magistrate’s Court at Naivasha.
- 2 Whether the applicant has met the threshold for transfer of suit under Section 15 of the Civil Procedure Act.
Ratio Decidendi
The court found that the applicant failed to substantiate claims of inconvenience, loss, hardship, or expense resulting from the suit proceeding in Nairobi. The cause of action arose in Nairobi, which is a valid determinant for venue under Section 15 of the Civil Procedure Act. Furthermore, the applicant had previously conceded to the jurisdiction of the Nairobi court in his pleadings. The availability of virtual proceedings further mitigates any alleged inconvenience. Consequently, the applicant did not meet the legal threshold for transfer of the suit, and the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to transfer Nairobi Divorce Cause No. E1568 of 2023 to the Chief Magistrate’s Court at Naivasha is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
Mukoya v Karugo (Miscellaneous Application 11 of 2024) [2024] KEHC 12990 (KLR) (Family) (18 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12990 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Miscellaneous Application 11 of 2024
PM Nyaundi, J
October 18, 2024
Between
Benson Lutta Mukoya
Applicant
and
Sarah Humbu Karugo
Respondent
Ruling
1. By Notice of Motion dated 20th March 2024 and presented under Sections 15, 17 & 18 of the Civil procedure Act and Order 50 rule 1 of the Civil Procedure Rules, the applicant herein seeks the following orders-1. Spent2. Spent3. That this Honourable Court be pleased to transfer Nairobi Divorce Cause No. E1568 of 2023 for hearing and disposal before the Chief Magistrate’s Court at Naivasha.4. That costs of this application be provided for.
2. The Application is based on the grounds on the face of the application and supported by the Affidavit of the Applicant sworn on 20th March 2024. The Respondent opposes the Application and has sworn an affidavit on 5th June 2024 in opposition.
3. The Applicant avers that he is resident in Naivasha and that pursuant to Section 15 of the Civil Procedure Act, the matter ought to have been filed in Naivasha. The Respondent on her part opposes the application on the basis that the marriage was celebrated in Nairobi and that they first established their matrimonial home in Nairobi before relocating to Naivasha. It is further submitted that in his answer to Petition and Cross Petition the Applicant conceded to the jurisdiction of the Court in Nairobi .
4. Finally, the Respondent avers that in view of the electronic case management system the Applicant can opt to participate virtually and that should address his concerns related to distance and attendant costs. In any event event it is submitted on the authority of the decision in David Kabungu v Zikamunga & 4 Others HCCC No. 36 of 1996 ( Ugandan High Court) that the Applicant has not met the threshold for granting of the orders sought.
5. Having considered the pleadings, submissions filed, authorities cited and the relevant law, I find that the Applicant has not met the threshold for the grant of the orders sought.
6. Section 15 of the Civil Procedure Act provides the factors that will determine where a matter should be filed, they are all at par, none ranks superior to the other. In this matter, the cause of action arose in Nairobi. Section 15 (c) recognizes this as one of the determinants of where a matter should be filed.
7. In his answer to the Petition and Cross Petition, the Applicant concedes to the jurisdiction of the Court. The Applicant alleges that the matter proceeding in Nairobi while he resides in Naivasha occasions great inconvenience, loss, hardship and expense to him but has not subtantiated this claim. The Court can not extrapolate based on its own assumptions.
8. For this reason the Application is dismissed with costs to the Respondent.
DELIVERED ON THE VIRTUAL PLATFORM, DATED AND SIGNED AT NAIROBI THIS 18th DAY OF OCTOBER, 2024. PATRICIA NYAUNDIJUDGEIn the Presence of:Court Assistant: Fardosa