[2017] KEHC 6997 (KLR)
The court found that the cause of action arose in Mavoko, where the Defendant is situated and conducts business. Since the Defendant did not oppose the transfer and both parties would be better served by having the matter heard at Mavoko Law Courts, the court held that it would be convenient and in the interests of...
Source-derived case information.
- Citation
- [2017] KEHC 6997 (KLR)
- Parties
- Plaintiff: Newton Juma Opiemi; Defendant: Sichuan Yongzhi Co. Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 122 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application allowed with costs to the Defendant/Respondent.
- Judges
- BC Koech
- Legal Topics
- Transfer of Suit, Jurisdiction, Venue of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Newton Juma Opiemi
Plaintiff
Sichuan Yongzhi Co. Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the court should order the transfer of Machakos CMCC No.490 of 2015 to the Principal Magistrate’s Court at Mavoko.
- 2 Whether the interests of justice require the transfer of the suit to Mavoko.
- 3 Whether costs should be awarded to the Defendant/Respondent.
Ratio Decidendi
The court found that the cause of action arose in Mavoko, where the Defendant is situated and conducts business. Since the Defendant did not oppose the transfer and both parties would be better served by having the matter heard at Mavoko Law Courts, the court held that it would be convenient and in the interests of justice to transfer the suit. No prejudice would be occasioned to either party, and their right of access to justice would be realized. The application for transfer was therefore allowed, with costs awarded to the Defendant/Respondent.
Court Disposition
Application allowed with costs to the Defendant/Respondent.
Orders
- The suit Machakos CMCC No.490 of 2015 is transferred to the Principal Magistrate’s Court at Mavoko in Athi River for hearing and determination.
- Costs of the application are awarded to the Defendant/Respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO.122 OF 2016
NEWTON JUMA OPIEMI...........................PLAINTIFF
VERSUS
SICHUAN YONGZHI CO. LTD...............DEFENDANT
RULING OF THE COURT
1. The Plaintiff/Applicant has filed a Notice of Motion dated 3rd June, 2016 under the Provisions of section 18(1) and (2) and Section 3A of the Civil Procedure Act seeking for the following reliefs:-
(1) THAT this Honourable court be pleased to order the transfer of civil Suit No.490 of 2015 Machakos to the Principal Magistrate’s Court at Mavoko in Athi river to be tried and disposed of by such court.
(2) THAT the costs of this Application be provided for.
The Application is supported by the annexed affidavit of the Applicant’s Advocate Abednego Nyambati sworn on even date and which raised the following grounds:-
(a) THAT the plaint dated 12/01/2016 was filed at the chief Magistrate’s court at Machakos.
(b) THAT the Defendant is situated within Mavoko.
(c) THAT it is only fair and just and in the interest of justice that the orders sought be granted.
2. The Application was not opposed by the Defendant/Respondent save that it sought for costs of the same on the ground that the Plaintiff having known that the cause of action arose in Mavoko should not have filed suit at Machakos law Courts.
3. I have considered the Plaintiffs Application and the response thereto by the Defendants. A perusal of the pleadings namely Plaint and defence in Machakos CMCC. No.490 of 2015 reveals that the cause of action arose in Mavoko where the Defendant is situate and carries on business. Since the Defendant’s counsel does not oppose the transfer of the Machakos CMCC 490/2015 to Mavoko, I find it would be convenient for both parties to have the matter heard at Mavoko law courts. No prejudice shall be occasioned to both the Defendant and the Plaintiff since their right of accessed to justice will be realized.
In the result the Applicant’s Application dated 3/06/2016 is allowed with costs to the Defendant/Respondent.
Dated and Delivered at Machakos9THday of MARCH,2017.
D. K. KEMEI
JUDGE
In the presence of:-
Makau for Respondent ……………..
C/A: Munyao …………………………….