[2017] KEHC 8156 (KLR)
The High Court found that the trial magistrate erred in striking out the suit for want of jurisdiction. The Magistrate's Act confers jurisdiction on magistrates throughout Kenya, and where there is an issue of territorial jurisdiction, the correct procedure is to transfer the matter to the appropriate court rather...
Source-derived case information.
- Citation
- [2017] KEHC 8156 (KLR)
- Parties
- Applicant: Nelson Nyongesa Wanda; Defendant: Philip Juma Shamalla; Defendant: Isaac Mafura Lunani
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2 of 2015
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Ruling of the trial court quashed and set aside.
- Legal Topics
- Jurisdiction of Magistrates Courts, Transfer of Suits, Striking Out of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Nyongesa Wanda
Applicant
Philip Juma Shamalla
Defendant
Isaac Mafura Lunani
Defendant
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in striking out the suit for want of jurisdiction.
- 2 Whether the Magistrate's Courts have jurisdiction throughout the Republic of Kenya.
- 3 Whether the proper procedure was followed in disposing of the suit.
Ratio Decidendi
The High Court found that the trial magistrate erred in striking out the suit for want of jurisdiction. The Magistrate's Act confers jurisdiction on magistrates throughout Kenya, and where there is an issue of territorial jurisdiction, the correct procedure is to transfer the matter to the appropriate court rather than striking it out. The court relied on established authorities, including Jedidah Katwa Kyetu v. John Njoronge Ngige and Mohamed Sitaban v. George Mwangi Karoki, which support the principle that transfer, not dismissal, is the proper remedy when jurisdictional issues arise. Consequently, the High Court quashed and set aside the lower court's ruling and directed that the...
Court Disposition
Appeal allowed. Ruling of the trial court quashed and set aside.
Orders
- The ruling of the trial court is quashed and set aside.
- The matter may proceed in Bungoma Chief Magistrate’s Court.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCA CASE NO. 02 OF 2015
NELSON NYONGESA WANDA......................................APPLICANT
VERSUS
PHILIP JUMA SHAMALLA.....................................1ST DEFENDANT
ISAAC MAFURA LUNANI......................................2ND DEFENDANT
[Being an appeal by Hon. D. Mutai delivered on 16. 1.15 CMCC no. 602 of 2013]
JUDGMENT
1. This is an appeal arising from the Ruling of Hon. D. Mutai SRM Bungoma that was delivered on 16. 1.2015 in CMCC No. 602 of 2013 wherein the Hon. Magistrate struck out the appellant’s suit with costs on grounds that the same was lodged outside the jurisdiction of the court.
2. The appellant who was the plaintiff in the suit being aggrieved by the decision appealed to this court on the grounds that
i. The Ruling of the Hon. Magistrate was contrary to Order 4 Rule 9 of the Civil Procedure Rules 2010.
ii. The trial magistrate failed to hold that the Magistrate’s Courts have jurisdiction throughout the Republic of Kenya.
iii. The decision was un procedural.
3. At the hearing the court received written and oral submission from the appellant however despite service of the hearing date and directive that parties do file written submissions there were no submissions filed by the respondent nor appearance at the time of hearing.
4. Counsel for the applicant submitted that dismissing the case was contrary to the Magistrate’s Act which empowers Magistrates to have jurisdiction throughout the country. He argued further that the best action by the trial magistrate was to transfer the matter to another court as pecuniary jurisdiction was acknowledged.
He relied on Jedidah Katwa Kyetu vs. John Njoronge Ngige versus Kenya Power & Lighting Civil Appeal No. 93 of 2011.
5. Having considered the application and submissions made I align myself with the authority cited and the other authorities on the subject namely; Onesmus Mwanza Mutual vs. Daima Bank Ltd, 2014 eKLR & Mohamed Sitaban Vs. George Mwangi Karoki C.A. No. 13 of 2002.
6. I therefore quash and set aside the ruling of the trial court. The matter may proceed in Bungoma Chief Magistrate’s court and should the applicant wish to have it transferred an appropriate application may be filed. Costs to the applicant.
DATED AND DELIVERED AT BUNGOMA THIS 19TH DAY OF JANUARY, 2017.
ALI-ARONI
JUDGE.