[2000] KEHC 108 (KLR)
The High Court determined that the overriding issue was the subordinate court's lack of pecuniary jurisdiction, especially in the context of a counter-claim, which is both a defence and a distinct suit. The court found that technical objections regarding the form of the affidavit did not override the substantive...
Source-derived case information.
- Citation
- [2000] KEHC 108 (KLR)
- Parties
- Applicant: National Water Conservation & Pipeline Corporation; Respondent: Ocean View Beach Hotel
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 227 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application granted
- Legal Topics
- Transfer of Suit, Pecuniary Jurisdiction, Counter Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Water Conservation & Pipeline Corporation
Applicant
Ocean View Beach Hotel
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the High Court should withdraw the case from the subordinate court due to lack of pecuniary jurisdiction.
- 2 Whether an advocate's affidavit on behalf of a client invalidates the application.
Ratio Decidendi
The High Court determined that the overriding issue was the subordinate court's lack of pecuniary jurisdiction, especially in the context of a counter-claim, which is both a defence and a distinct suit. The court found that technical objections regarding the form of the affidavit did not override the substantive jurisdictional issue. Consequently, the application to withdraw the case from the subordinate court and bring it before the High Court was granted.
Court Disposition
application granted
Orders
- The case is withdrawn from the subordinate court and brought to the High Court.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASAMISC. CIVIL SUIT NO.227OF 2000NATIONAL WATER CONSERVATION &PIPELINE CORPORATION………. APPLICANT- versus –OCEAN VIEW BEACH HOTEL …………………………………………. RESPONDENTR U L I N G
Under S.18 of Civil Procedure Rules this Court can on application by any party to proceedings transfer or withdraw a case from lower court to itself. Here there is an application to withdraw the case from Subordinate Court to this Court on grounds that Pecuniary Jurisdiction of the lower Court is exceeded.
Mr. Kioko has opposed this on several grounds but I do not think those grounds are pertinent. The question of advocate swearing an affidavit on behalf of his client is a bad practice because it exposes an advocate to cross examination, it interferes with his exemptions and privileges under Evidence Act, but it does not render such application void.
Other grounds mentioned by Mt. Kioko are not such that they can override the question of Jurisdiction. If the Lower Court would lack jurisdiction when a counter-claim is pleaded then High Court is the appropriate forum. Counter-claim is a defence as well as a distinct suit.
I therefore grant the application and order the case be withdrawn from the subordinate court and be brought to the High Court. Cost to be in the cause.
Dated this 16th Day of November, 2000.
A.I. HAYANGA
JUDGE