[2022] KEHC 12003 (KLR)

PCK v IKS (Miscellaneous Civil Application E006 of 2021) [2022] KEHC 12003 (KLR) (8 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12003 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Miscellaneous Civil Application E006 of 2021

WK Korir, J

June 8, 2022

Between

PCK

Applicant

and

IKS

Respondent

Ruling

1. The applicant, PCK , has brought the application dated August 31, 2021under sections 1A, 1B, 15, 17 and 18 of the Civil Procedure Act, cap. 21 (CPA) and Order 50 Rule 1 of the Civil Procedure Rules, 2010 (CPR) seeking the transfer of Kapenguria PMC Divorce Petition No. E003 of 2021 between him and IKS , the respondent herein, from Kapenguria PM’s Court to Kitale CM’s Court for hearing and determination.

2. In summary, the applicant’s case is that after he contracted a marriage with the respondent, they cohabited as husband and wife at Maili Saba within Trans Nzoia County and the Magistrate’s Court at Kapenguria where the respondent has filed Divorce Cause No. E003 of 2021 against him has no jurisdiction to entertain the matter. The applicant therefore urges this court to invoke its power under section 18 of the CPA and transfer the matter from Kapenguria PM’s Court to Kitale CM’s Court which according to him is the court seized with the jurisdiction to hear and determine the matter.

3. In her replying affidavit sworn on October 21, 2021, the respondent opposed the application stating that the Magistrate’s Court at Kapenguria has jurisdiction to hear and determine her case. She also avers that the applicant has not advanced any compelling reasons for transferring the matter to Kitale. According to her, the applicant is a bodaboda operator who frequents Kapenguria town and will suffer no prejudice if his application is declined.

4. Through his submissions dated November 19, 2021, the applicant relies on section 15 of the CPA to contend that suits should be instituted where the defendant resides. He submits that he is the defendant in this case and he resides at Goseta in Trans Nzoia County and the suit should have been filed in Kitale.

5. On the powers of this court to transfer the suit, the applicant relies on sections 17 and 18 of the CPA in support of the argument that this court has the power to withdraw and transfer a case instituted in any subordinate court. He further relies on the case of Elizabeth Kapoli v Hekima Place Trust [2018] eKLR in urging this court to invoke its powers under section 18 of the CPA.

6. The applicant also submits that he is bound to suffer prejudice since he is not a resident of Kapenguria and will therefore be compelled to frequent Kapenguria during the pendency of the case. The applicant finally submits that this is not an appeal against the ruling of the trial court in a preliminary objection that he raised and instead is an application under section 18(1) of the CPA.

7. On her part, therespondent in her submissions dated 1January 7, 2022 relied onsection 3(2) of the Magistrates’ Courts Act to submit that the jurisdiction of a magistrate’s court is countrywide and therefore Kapenguria Magistrate’s Court has jurisdiction to hear and determine her case. She also relied on the case of Mohamed Sitaban v George Mwangi Karoki, Civil App. No. 12 of 2002 where the court stated that even though there are certain administrative reasons for filing suits within the jurisdiction where the defendant resides, those reasons cannot oust the jurisdiction of the court.

8. The respondent additionally relied on the case of DOK v JEN alias JEK[2016] eKLR to submit that in ordering a transfer of a suit, the court ought to consider and ensure the expeditious, proportionate and affordable resolution of civil disputes. The respondent argued that although the applicant lives in Maili Saba, it is easier and convenient for him to reach Kapenguria Law Courts as opposed to Kitale Law Courts. She therefore urged this court to dismiss the application.

9. The main ground upon which the applicant seeks the transfer of Kapenguria PMC Divorce Cause No. E003 of 2021 to Kitale Chief Magistrate’s Court is that the Magistrate’s Court at Kapenguria has no jurisdiction to handle the matter. His argument is that because he resides at Goseta in Trans Nzoia County the divorce cause ought to have been filed in Kitale by virtue of section 15 of the CPA. The Applicant further seeks to invoke this court’s powers and jurisdiction under sections 17 and 18 of the CPA.

10. Section 17 of the CPA states that:“Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.”

11. Section 18 of the CPAempowers this court as follows:“(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 of 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 or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—(i)try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”

12. In Oceanic Towers Limited v Husseini Builders Limited [2021] eKLR, the court cited with approval the Ugandan case of David Kabungu v Zikarenga & 4 othersKampala HCCS No. 36 of 1995, where the Court addressed the power of the High Court to transfer suits as follows:“Section 18(1) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purposes of working injustice. What the court has to consider is whether the applicant has made a case to justify it in closing doors of the court on which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction …….. It is a well-established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are balance of convenience, questions of expenses, interest of justice and possibilities to undue hardship and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the duplication must be refused. Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer could be refused……"

13. Similarly, the High Court in Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & another [2012] eKLR addressed the issue as follows:“The law relating to transfer of suits from subordinate Courts to the High Court or any transfer for that matter is very clear. In Kagenyi v Musiramo (supra), Sir Udo Udoma, CJ made it clear that an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court which has jurisdiction to try it. In Ali Abdi Sheikh v Edward Nderitu Wainaina & others (supra), Koome, J (as she then was) found that since the plaintiff had filed a suit in respect of a claim to land whose value exceeded Kshs. 500,000. 00 in the subordinate court the suit could not be transferred since the general powers of the court to transfer suits under section 18 of the Civil Procedure Act cannot be exercised in a matter where the suit was filed in a court without jurisdiction…It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognised by law. It is now settled law that where acourt finds that it has no jurisdiction, it must immediately down its tools and proceed no further.”

14. From the cited authorities, it is clear that for an application for the transfer of a suit to succeed, the court from which the suit is being transferred must in the first place have jurisdiction to try that matter. The applicant is also required to put forward a strong case for the transfer to materialize.

15. Were this court to agree with the Applicant that Kapenguria PM’s Court has no jurisdiction to try the matter in question, then the order he seeks cannot be granted. The question therefore is whether Kapenguria PM’s Court has the jurisdiction to try the divorce cause. The applicant’s case is that because he is the defendant and resides at Trans Nzoia County, then as provided by section 15 of the CPA the suit ought to have been filed at Kitale Chief Magistrate’s Court. On her part, the respondent relies onsection 3(2) of the Magistrates’ Courts Act to argue that the jurisdiction of a magistrate’s court is countrywide and therefore the Magistrate’s Court at Kapenguria has jurisdiction to hear and determine the matter.

16. It is necessary to point out at this stage that the section 3(2) of the Magistrates’ Courts Act referred to by the respondent and which was cited by Ringera, J (as he then was) in Mohamed Sitaban v George Mwangi Karoki, Civil Application No 13 of 2002 was found in the Magistrates’ Courts Act, cap. 10 which was repealed in its entirety by section 22 of the Magistrates’ Courts Act No 26 of 2015. The provision relied on by the respondent is therefore no longer the law of this country.

17. It is noted that the preamble of the Magistrates’ Courts Act, 2015 states that the Act is meant “to give effect to articles 23(2) and 169(1)(a) and (2) of the Constitution; to confer jurisdiction, functions and powers on the magistrates' courts; to provide for the procedure of the magistrates' courts, and for connected purposes.” Therefore, when it comes to the jurisdiction of a magistrate’s court, the place to go to is the Magistrates’ Courts Act, 2015. The Act does not provide for territorial jurisdiction of the magistrates’ courts across the country. What is stressed is pecuniary limits of jurisdiction between the various cadres of the magistracy. There is therefore no merit in the applicant’s submission that civil cases have to be filed in the magistrate’s court nearest to where the defendant resides. I therefore find the applicant’s claim that Kapenguria PM’s Court has no jurisdiction to handle the marital dispute between him and his wife to be without merit.

18. In reaching the above finding, I am not saying that the Magistrates’ Courts Act, 2015 repealed section 15 of the CPA. In my view, section 15 of the CPA should be read so as to promote the objective captured in section 4 of the Magistrates’ Courts Act, 2015 and section 1A of theCPAwhich is to facilitate just, expeditious, proportionate and accessible justice.

19. In view of the rise in the use of virtual courts to dispense justice, I foresee a situation in the near future where courts with heavy caseloads will offload their matters to courts with lesser case traffic thereby rendering the question of territorial jurisdiction a thing of the past. However, in the case at hand we are talking about the present where the parties still have to physically appear in court with their witnesses.

20. In the respondent’s submissions it is stated that she filed the case at Kapenguria because she currently resides at Makutano where she does business. I have carefully gone through the respondent’s replying affidavit and nowhere does she aver that she resides in Makutano. On the other hand, the applicant has averred that he lives in Trans Nzoia County. Kitale Chief Magistrate’s Court was, as per section 15 of the CPA, the court at which the respondent was required to file her case. No good reason has been advanced to support her decision to overlook a clear statutory provision by filing her case at Kapenguria Principal Magistrate’s Court. Allowing the respondent to get away with her action without any justification is likely to encourage a situation where parties will file their cases far away from the places where the defendants reside. That would force the defendants to incur unnecessary expenses.

21. The applicant has told this court that the decision to file the case in Kapenguria and not Kitale has prejudiced him. He is the one who knows where the shoe pinches and his application cannot be dismissed offhand. In short, I find his application has merit. The application is therefore allowed and an order issued transferring Kapenguria PM Divorce Petition No. E003 of 2021 IKS v PCK to Kitale Chief Magistrate’s Court for hearing and determination. This order is issued on the understanding that the trial of the matter has not commenced.

22. The parties will meet their own costs of the application.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 8THDAY OF JUNE, 2022W. KORIR,JUDGE OF THE HIGH COURT