[2007] KEHC 867 (KLR)
The court found that the applicant's averments regarding residence, location of the cause of action, and convenience were unchallenged. Both the Milimani and Meru Chief Magistrate Courts have jurisdiction. The court exercised its discretion to transfer the suit to Meru to avoid unnecessary travel and expenses for...
Source-derived case information.
- Citation
- [2007] KEHC 867 (KLR)
- Parties
- Applicant: Ndege M'Marangu; Respondent: National Bank of Kenya Ltd.
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 107 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Stay and Transfer of Suit
- Outcome
- application allowed
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Venue of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndege M'Marangu
Applicant
National Bank of Kenya Ltd.
Respondent
Procedural Posture
Civil Case / Ruling on Application for Stay and Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from Milimani Chief Magistrate Court to Meru Chief Magistrate Court for hearing and determination.
- 2 Whether a stay of proceedings should be granted pending transfer.
- 3 Whether the applicant has established sufficient grounds for transfer based on convenience and jurisdiction.
Ratio Decidendi
The court found that the applicant's averments regarding residence, location of the cause of action, and convenience were unchallenged. Both the Milimani and Meru Chief Magistrate Courts have jurisdiction. The court exercised its discretion to transfer the suit to Meru to avoid unnecessary travel and expenses for the applicant, as there was no justification for the suit being instituted in Nairobi. The respondent's argument regarding delay was not sufficient to outweigh the applicant's grounds for transfer. Consequently, the court ordered the transfer of the suit and awarded costs to the applicant.
Court Disposition
application allowed
Orders
- Milimani Chief Magistrate Civil Case No.13291 of 2004 is ordered to be transferred to the Chief Magistrate Court at Meru for trial and final determination.
- The respondent to pay to the applicant the costs of this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MERU
CIVIL CASE 107 OF 2006
NDEGE M’MARANGU ……………………….….………………………… APPLICANT
VERSUS
NATIONAL BANK OF KENYA LTD. ………………………………….. RESPONDENT
RULING
This application seeks in the main two prayers, namely, that there be a stay of proceedings in Milimani Chief Magistrate Civil Case No.13291 of 2004 and two, that the said Milimani Chief Magistrate Civil Case No.13291 of 2004 be transferred to Meru Chief Magistrate’s for hearing and final determination. The application is based on the grounds that the cause of action arose in Meru, the applicant and his potential witnesses reside in Meru, the subject matter is in Meru while the respondent’s witnesses are likely to be drawn from its Meru Branch.
Despite service by the applicant of the application the respondent has not filed a response. However, counsel holding brief for counsel representing the respondent argued that the application is bound to delay the hearing of the suit which is scheduled for November, 2007.
The High Court, under Section 18 of the Civil Procedure Act, can, on the application of a party or on its own motion, at any stage, withdraw a suit pending in a subordinate court and transfer it for trial and disposal to any subordinate court competent to try the same.
These are wide powers exercised only subject to the court being satisfied that the court seized of the case and that to which it is sought to be transferred have jurisdiction.
On the other hand, Sections 12 to 16 of the Civil Procedure Act outlines the Guidelines on where suits can be instituted. Relevant to this application is Section 15. The applicant has averred that he resides in Meru; that the cause of action arose in Meru; that the loan in question was obtained from the respondent’s branch in Meru and that all potential witnesses are likely to be drawn from Meru.
These averments have not been challenged. I find no reason at all why the suit was instituted in Nairobi. The subordinate court at Milimani, Nairobi has jurisdiction so does the Chief Magistrate Court at Meru.
I will exercise my discretion in favour of the applicant who would otherwise be subjected to unnecessary travel and other expenses in defending the suit in Nairobi.
In the result Milimani Chief Magistrate Civil Case No.13291 of 2004 is ordered to be transferred to the Chief Magistrate Court at Meru for trial and final determination.
The respondent to pay to the applicant the costs of this application.
DATED AND DELIVERED AT MERU THIS 18th DAY OF May, 2007
W. OUKO
JUDGE