[2013] KEHC 1790 (KLR)
Although the Mumias court has jurisdiction to hear the dispute, the respondent's apprehension of bias—based on her belief that she would not get a fair hearing in Mumias due to perceived familiarity between court officials and the 2nd defendant—was found to be justified. The court held that justice must be seen to...
Source-derived case information.
- Citation
- [2013] KEHC 1790 (KLR)
- Parties
- Applicant: Paul Barasa Wamot T/A Pawaba Auctioneers; Respondent: Amina Lutta Hanjira; Respondent: Equity Bank
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 73 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed
- Legal Topics
- Transfer of Suit, Jurisdiction of Magistrates Courts, Local Jurisdiction, Apprehension of Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Barasa Wamot T/A Pawaba Auctioneers
Applicant
Amina Lutta Hanjira
Respondent
Equity Bank
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the suit Kakamega CMCC 228 of 2013 should be transferred to Mumias Senior Principal Magistrate’s Court for hearing and determination.
- 2 Whether the apprehension of bias by the respondent justifies retaining the suit in Kakamega.
Ratio Decidendi
Although the Mumias court has jurisdiction to hear the dispute, the respondent's apprehension of bias—based on her belief that she would not get a fair hearing in Mumias due to perceived familiarity between court officials and the 2nd defendant—was found to be justified. The court held that justice must be seen to be done, and where a party is genuinely apprehensive, the court must evaluate and address that concern. The only prejudice to the defendants would be costs, which can be compensated if the plaintiff's case is dismissed. Therefore, the application to transfer the suit was dismissed to ensure the respondent's confidence in the impartiality of the proceedings.
Court Disposition
application dismissed
Orders
- The application to transfer Kakamega CMCC 228 of 2013 to Mumias Senior Principal Magistrate’s Court is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISC. CIVIL APPLICATION NO. 73 OF 2013
PAUL BARASA WAMOT
T/A PAWABA AUCTIONEERS ………………….. APPLICANT
V E R S U S
AMINA LUTTA HANJIRA ………………… 1ST RESPONDENT
EQUITY BANK ..……………………………. 2ND RESPONDENT
R U L I N G
The application dated 13. 8.2013 the applicant is seeking to have file number Kakamega CMCC 228 of 2013 transferred to the Mumias Senior Principal Magistrate’s Court for hearing and determination. Mr. Odongo for the applicant submitted that the cause of action arose in Mumias, the defendants are based in Mumias and the property that was attached is also being held at the Mumias police station. Section 15of the Civil Procedure Act requires that suits be filed within the local jurisdiction and the Mumias court has jurisdiction to hear the matter. It will be expensive to ferry witnesses all the way from Mumias.
Mr. Kundu, counsel for the plaintiff/respondent opposed the application and relied on the replying affidavit of the applicant sworn on the 21. 8.2013. Counsel maintains that when the suit was filed the applicant did not object to the jurisdiction. Section 32 of the Magistrate’s Court Act, (Chapter 10) donates powers to the Chief Magistrate in Kakamega to hear the matter. Counsel contends that the plaintiff did indicate in her replying affidavit that a manager of the 2nd defendant informed her that the court officials at Mumias are known to him and the plaintiff cannot win at Mumias. That information made the respondent to file the matter in Kakamega.
The law requires that cases be filed in a court within the local jurisdiction. It is true that the Mumias court has jurisdiction to determine the dispute. However, the contentions by the respondent cannot be swept under the carpet. Justice should not only be done but should be seen to be done. Whereas the defendants are comfortable with the matter being heard at Mumias, the respondent is apprehensive that if it is heard at Mumias she may not get justice. The essence of settling disputes encompasses the element of faith on the part of the court officials. Each party must be of the view that they would dispense justice and not favour any of the parties. Where a party is apprehensive, the court has to evaluate that contention and see how to deal with it. The respondent herein contends that she took a loan from the 2nd defendant and the loan was fully paid. There was no demand notice issued to her and her items were attached and carted away by the 1st defendant. On inquiry from the 2nd defendant, she was informed that the attachment was for the recovery of the auctioneer’s costs. There appears to have been no previous court case. I have read the replying affidavit by the 1st respondent and I am satisfied that her apprehension is justified. The only prejudice the defendants would suffer is the issue of costs which can be awarded should the plaintiff’s case be dismissed. In the end, I do find that justice would be served if the matter is heard in Kakamega. The application herein is hereby dismissed with no orders as to costs.
Delivered, dated and signed at Kakamega this 23rd day of October 2013
SAID J. CHITEMBWE
J U D G E