[2005] KEHC 1442 (KLR)
Although the Civil Procedure Act requires suits to be filed within the local limits of the defendant's residence or business, the jurisdiction of the Kiambu court was not ousted by the suit being filed there. The High Court retains discretion to transfer suits between subordinate courts, but this discretion must be...
Source-derived case information.
- Citation
- [2005] KEHC 1442 (KLR)
- Parties
- Applicant: P.M. Dick Auctioneers; Respondent: Mary Njeri Ngome
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 240 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed with costs to the plaintiff
- Legal Topics
- Transfer of Suits, Jurisdiction of Magistrates Courts, Local Limits of Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P.M. Dick Auctioneers
Applicant
Mary Njeri Ngome
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the suit should be transferred from Kiambu Law Courts to Nakuru Law Courts due to jurisdictional and convenience concerns.
- 2 Whether the filing of the suit in Kiambu ousted the court's jurisdiction given the cause of action arose in Naivasha and the defendant carried on business in Nakuru.
- 3 Whether the application for transfer is timely and justified after judgment and commencement of execution.
Ratio Decidendi
Although the Civil Procedure Act requires suits to be filed within the local limits of the defendant's residence or business, the jurisdiction of the Kiambu court was not ousted by the suit being filed there. The High Court retains discretion to transfer suits between subordinate courts, but this discretion must be exercised judiciously. In this case, the matter had already been heard and determined in Kiambu, and execution was underway. There was no compelling reason to justify transfer at this late stage, and the applicant's delay was not excusable. Equity does not aid the indolent. The application for transfer was therefore dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application for transfer is dismissed.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Misc Civ Appli 240 of 2005
P.M. DICK AUCTIONEERS ………………………………APPLICANT
VERSUS
MARY NJERI NGOME ……………………………….. RESPONDENT
RULING
This is an application by the defendant in KIAMBU SPMCC NO.263 of 2002 MARY NJERI NGOME VS PAUL MUCHIRI DICK T/A P.M. DICK AUCTIONEERS seeking an transfer of the aforesaid suit from Kiambu Law Courts to a competent Magistrate’s court in Nakuru.
The applicant contended that it was filed outside the geographical local limits of the place where the cause of action arose, Naivasha, while the applicant carries out business in Nakuru. He said that owing to the distance, it had become increasingly difficult and expensive to defend himself. The case has been heard and judgment given and execution is in process.
The respondent opposed the application saying that Kiambu Court had jurisdiction to hear and determine the suit and in any event, the defendant submitted to the jurisdiction of the court when he filed his statement of defence and the matter was eventually heard ex-parte and determined. The defendant filed an application to set aside those proceedings but the court dismissed the application with costs.
I have considered all the submissions that were made before this court by the advocates for the parties.
Under Section 3(2) of the Magistrates Courts Act Cap 10, a Resident Magistrate’s court has jurisdiction throughout Kenya. That notwithstanding, Section 15 of the Civil Procedure Act requires that every suit be instituted in a court within the local limits of whose jurisdiction the defendant at the commencement of the suit voluntarily resides or carries on business or personally works for gain.
While ordinarily the said case should have been filed in the subordinate court at Nakuru, the court’s jurisdiction was not ousted by its filing in Kiambu Senior Principal Magistrate’s Court.
It is true that this court has the power to order at any stage, the withdrawal of any suit or proceedings in any court subordinate to it and thereafter transfer the same for trial or disposal to any other subordinate court competent to try or dispose of it, but that power must be exercised reasonably an judiciously. The hearing of the matter has already been finalized at Kiambu Law Courts and execution is underway. It would be improper to order withdrawal of the said case from Kiambu Law Courts to Nakuru Law Courts at this stage in absence of any good reason as to why that ought to be done. The applicant is waking up too late in the day and equity does not aid the indolent. I dismiss the application with costs to the plaintiff.
DATED, SIGNED & DELIVERED AT Nakuru this 29th day of July, 2005.
D. MUSINGA
JUDGE
29/7/2005