[2006] KEHC 1484 (KLR)
The court held that section 18(1) of the Civil Procedure Act does not confer jurisdiction on the High Court to transfer a suit from one High Court station to another; its power is limited to transfers to subordinate courts. The application was therefore brought under the wrong provision. Furthermore, the application...
Source-derived case information.
- Citation
- [2006] KEHC 1484 (KLR)
- Parties
- Plaintiff: Nelson Omuniala Koli; Defendant: Kenya National Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 174 of 1993
- Procedural Posture
- Civil Suit / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed with costs to the defendant
- Judges
- AI Tullu
- Legal Topics
- Transfer of Suits, Jurisdiction of High Court, Civil Procedure Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Omuniala Koli
Plaintiff
Kenya National Assurance Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the High Court has jurisdiction under section 18(1) of the Civil Procedure Act to transfer a suit from one High Court station to another.
- 2 Whether the application for transfer was properly brought before the court under the correct legal provision.
- 3 Whether the absence of an affidavit in support of the application affects its merit.
Ratio Decidendi
The court held that section 18(1) of the Civil Procedure Act does not confer jurisdiction on the High Court to transfer a suit from one High Court station to another; its power is limited to transfers to subordinate courts. The application was therefore brought under the wrong provision. Furthermore, the application was unsupported by any affidavit or evidence, rendering the grounds mere allegations. The court declined to invoke its inherent powers under section 3A where an express statutory provision exists. Consequently, the application for transfer was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs to the defendant
Orders
- The application for transfer is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 174 of 1993
NELSON OMUNIALA KOLI:........................................................................................................PLAINTIFF
VERSUS
KENYA NATIONAL ASSURANCE CO: LTD......................................................................DEFENDANT
RULING
This is an application under the provisions of inter alia, Sections 18 (1) of the Civil Procedure Rules seeking one main order that:-
“This suit be transferred from the High Court of KenyaEldoret to the High Court of Kenya (Milimani Commercial Courts) Nairobi for trial and disposal........”
The application was opposed on the ground, inter alia that order the provisions of section 18 (1) of the Civil Procedure Act, the jurisdiction given relates to transfer of suits to subordinate courts . Section 18 (1) provides as follows:-
“ 18 (1) on the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or on its own motion without such notice, the High Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial to any court subordinate to it and competent to try or dispose of the same or................”
It is clear from the foregoing provision that there is no power or jurisdiction given to the High Court to “transfer” a suit from the High Court sitting in one place to another under the aforesaid provision. The power is confined to transfer of suits to the subordinate courts.
I think that the appropriate provision under which the application ought to have been brought is section 46 of the Civil Procedure Act. This court cannot invoke the provision of section 3A as suggested when an express provision of the law exists to deal with the situation.
This court would have considered the application within the context of section 46 on its merit hand the applicant placed before the court facts to or evidence to justify the application. The application by way of Notice of Motion did not have any affidavit in support and the grounds set out therein remained allegations.
I do hereby dismiss the application with costs to the Defendant.
DATED AND DELIVERED AT ELDORET ON THIS 25TH DAY OF JULY,2006
M.K. IBRAHIM
JUDGE.