[2008] KEHC 1816 (KLR)
The court found that although section 12 of the Civil Procedure Act provides that suits should be filed in the court nearest to where the subject matter is situated or where the parties reside, and section 17 allows for transfer of suits, section 17 specifically deals with subordinate courts. Since there is only one...
Source-derived case information.
- Citation
- [2008] KEHC 1816 (KLR)
- Parties
- Plaintiff: Paul Kirwa; Defendant: Jackson Kiplagat Arap Meli (Administrator to the estate of the Late Kemeli Kogo Simeon); Defendant: Roselyne Chemaiyo Kenei (Administrator to the estate of the late Elijah Kiptarus Kenei); Defendant: Anna Jepkoech Tenai (Administrator of the estate of the late Michael Makakwen Arap Tenai); Defendant: Dina Jepkoroir Tenai (Administrator of the estate of Michael Malakwena Rap Tenai); Defendant: Commissioner of Lands; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2361 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Transfer Suit
- Outcome
- Application to transfer suit dismissed. Suit to proceed at Nairobi.
- Legal Topics
- Transfer of Suits, Jurisdiction, Venue of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kirwa
Plaintiff
Jackson Kiplagat Arap Meli (Administrator to the estate of the Late Kemeli Kogo Simeon)
Defendant
Roselyne Chemaiyo Kenei (Administrator to the estate of the late Elijah Kiptarus Kenei)
Defendant
Anna Jepkoech Tenai (Administrator of the estate of the late Michael Makakwen Arap Tenai)
Defendant
Dina Jepkoroir Tenai (Administrator of the estate of Michael Malakwena Rap Tenai)
Defendant
Commissioner of Lands
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the suit should be transferred from the High Court at Nairobi to the High Court at Kitale under sections 12 and 17 of the Civil Procedure Act.
- 2 Whether the court has jurisdiction to transfer the suit as requested by the defendants.
Ratio Decidendi
The court found that although section 12 of the Civil Procedure Act provides that suits should be filed in the court nearest to where the subject matter is situated or where the parties reside, and section 17 allows for transfer of suits, section 17 specifically deals with subordinate courts. Since there is only one High Court of Kenya, the application to transfer the suit from Nairobi to Kitale could not be granted. The court held that the proper procedure would have been to withdraw the suit and file afresh at Kitale if desired. As the plaintiff chose Nairobi as the venue, the suit would proceed there, and the plaintiff would bear the costs of travel and subsistence for witnesses...
Court Disposition
Application to transfer suit dismissed. Suit to proceed at Nairobi.
Orders
- The application to transfer the suit to Kitale is declined.
- The suit shall proceed to hearing at Nairobi.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2361 of 2007
PAUL KIRWA ……………......………………………..........…. PLAINTIFF
VERSUS
JACKSON KIPLAGAT ARAP MELI (sued as the Administrator to the estate of the Late KEMELI KOGO SIMEON) ….…......………................… 1ST DEFENDANT
ROSELYNE CHEMAIYO KENEI (sued as the Administrator to the estate of the late ELIJAH KIPTARUS KENEI ….......…............................ 2ND DEFENDANT
ANNA JEPKOECH TENAI (Sued as the Administrator of the estate of the late MICHAEL MAKAKWEN ARAP TENAI ...... 3RD DEFENDANT
DINA JEPKOROIR TENAI (Sued as the administrator of the estate
of the MICHAEL MALAKWENA RAP TENAI …........ 4TH DEFENDANT
COMMISSIONER OF LANDS ……………………….. 5TH DEFENDANT
THE HON. ATTORNEY GENERAL ……………….... 6TH DEFENDANT
RULING
APPLICATION TO TRANSFER SUIT TO COURT
HIGH COURT AT KITALE SECTION 12 AND 17
CIVIL PROCEDURE RULES
1. The suit herein was filed in the High Court of Kenya at Nairobi. The parties appear to all come from Kitale. Ideally this suit under section1 2 should have been filed in the High Court of Kenya at Kitale.
2. Defendants 1,2,3 and 4 all wish for this suit to now be transferred to Kitale for hearing and determination. They rely on section 12 and 17 of the Civil Procedure Act.
3. Section 12 speaks of suits to be instituted where subject matter is; whilst section 17 deals with the power of the court to transfer suits which may be instituted in more than one court.
4. It is on the grounds that the parties reside in Kitale that the suit is to be transferred.
5. The plaintiff applicant was absent and did not appear during the application. No grounds were in effect filed by the plaintiff.
III: Opinion.
6. Section 17 Civil Procedure Act deals with the subordinate courts. Section 12 should have ideally been followed and suits filed in the nearest court.
7. The option that the parties would have had was during summons for direction. This was when the application would have stated the time, place and hearing of a suit. Since summons for directions was done away with there is no option but for the withdrawal of the suit and filing of a fresh suit at Kitale.
8. There is only one High Court of Kenya.
9. I hereby decline to transfer this suit and order that it proceeds to hear at Nairobi. As the plaintiff choose to file it in Nairobi, he will bear the costs of travel and substances allowance of all the witnesses who will atend court.
10 The costs of this application will be in the cause.
DATED THIS 8TH DAY OF MAY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
M/s Wilfred C. Odhiambo instructed by Wilfred C. Odhiambo & Co. Advocates for the plaintiff- present
B. Moboso holding brief for A. Kidiavai for Kidiavai & Co. Advocates for the 1st -4th defendant/Respondents- present
K. Onyuso instructed by K. Onyuso & Co. Advocates for the 5th and 6th defendants/respondents - present