[2012] KEHC 3702 (KLR)
The court found that since the applicant's claim exceeded the pecuniary jurisdiction of the subordinate court, the suit was filed in a court without jurisdiction. In such circumstances, section 18 of the Civil Procedure Act does not empower the High Court to transfer the suit to itself. The proper procedure would...
Source-derived case information.
- Citation
- [2012] KEHC 3702 (KLR)
- Parties
- Applicant: Raphael Karani Wachira; Respondent: Sarova Hotels Limited
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 2 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit for Lack of Jurisdiction
- Outcome
- application dismissed with costs
- Legal Topics
- Transfer of Suits, Pecuniary Jurisdiction, Wrongful Termination, Special and General Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Raphael Karani Wachira
Applicant
Sarova Hotels Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit for Lack of Jurisdiction
Legal Issues
- 1 Whether the High Court can transfer a suit from the subordinate court to itself where the subordinate court lacks pecuniary jurisdiction.
- 2 Whether section 18 of the Civil Procedure Act is available to the applicant in the circumstances.
- 3 Whether the applicant should withdraw the suit and file afresh in the High Court.
Ratio Decidendi
The court found that since the applicant's claim exceeded the pecuniary jurisdiction of the subordinate court, the suit was filed in a court without jurisdiction. In such circumstances, section 18 of the Civil Procedure Act does not empower the High Court to transfer the suit to itself. The proper procedure would have been for the applicant to withdraw the suit from the subordinate court and file a fresh suit in the High Court. The court relied on established case law, including Kagenyi v Misiramo and Charles Omwata Omwoyo v African Highlands and Produce, which held that transfer is not available where the original court lacks jurisdiction. Consequently, the application to transfer the...
Court Disposition
application dismissed with costs
Orders
- The application dated 14/10/2009 is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Miscellaneous Civil Application 2 of 2010
RAPHAEL KARANI WACHIRA……………………… PLAINTIFF/APPLICANT
VERSUS
SAROVA HOTELS LIMITED…………….....……DEFENDANT/RESPONDENT
R U L I N G
The Applicant herein has filed an application dated 14/10/2009 for orders to transfer Embu SPMCC NO. 129/08 to Embu High Court for hearing and determination. The reason being that the SPM’s Court has no jurisdiction to deal as his claim is over 3 million shillings.
The application is supported by his affidavit sworn on 14/10/2009.
The application has been opposed on the ground that if the claim was filed in a Court without jurisdiction it can’t be transferred on that ground alone.
He relied on the case of CHARLES OMWATA OMWOYO –VS- AFRICAN HIGHLANDS AND PRODUCE HCC MISC. APPLICATION NO.308 OF 2002 NRB.
I have looked at the plaint in SPM CC No.129/08. The Plaintiff does not indicate what he expects as special damages. All he states is that he wants unpaid salary plus other benefits from 8th October 2004.
2. General and special damages for wrongful termination or dismissal from employment.
And if he knew that his claim was over 3 million then he filed his claim in a Court without pecuniary jurisdiction. And if that be the case then following the case of KAGENYI –VS- MISIRAMO & ANOTHER [1968] E.A. 48 and persuaded by the holding in the case of CHARLES OMWATA OMWOYO (supra). I do find that section 18 Civil Procedure Act is not available to the applicant. He should have withdrawn the suit therein and filed a fresh suit in the High Court. The Applicant is not precluded from proceeding with his case in the lower court as the same has not been decided or withdrawn. All depends on what he is able to prove. I do appreciate that the Applicant is not represented in the matter before the lower Court. It’s also not clear what informed the trial Magistrate’s decision that the lower Court lacked jurisdiction. If he chooses to proceed before the lower Court then his matter should proceed before the Chief Magistrate Embu. And for the reasons above I do find that the application lacks merit. I dismiss it with costs.
DELIVERED, SIGNED AND DATED I AT EMBU THIS 5TH DAY OF JUNE 2012.
H.I. ONG’UDI
JUDGE
In the presence of;
M/s Muthike for Wachira for Respondent
Njue – C/c