[2012] KEHC 1889 (KLR)
The application to transfer the suit from the magistrate's court to the High Court was dismissed because, following the enhancement of the magistrate's court's monetary jurisdiction to Ksh. 7 million, the subordinate court was competent to hear the matter. Furthermore, based on the principle in Kagenyi v Musiramo, a...
Source-derived case information.
- Citation
- [2012] KEHC 1889 (KLR)
- Parties
- Applicant: Rose Wanjiku Njau; Respondent: Nicholson Philip; Respondent: Caroline Akinyi; Respondent: Enock Osinde Ondiek
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 387 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Transfer of Suits, Jurisdiction of Subordinate Courts, Monetary Jurisdiction, Running Down Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Wanjiku Njau
Applicant
Nicholson Philip
Respondent
Caroline Akinyi
Respondent
Enock Osinde Ondiek
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
Legal Issues
- 1 Whether the High Court can transfer a suit from the magistrate's court where the subordinate court allegedly lacks monetary jurisdiction.
- 2 Whether the magistrate's court had jurisdiction to hear the matter after the enhancement of its monetary jurisdiction.
Ratio Decidendi
The application to transfer the suit from the magistrate's court to the High Court was dismissed because, following the enhancement of the magistrate's court's monetary jurisdiction to Ksh. 7 million, the subordinate court was competent to hear the matter. Furthermore, based on the principle in Kagenyi v Musiramo, a suit cannot be transferred to another court unless the original court had jurisdiction to try it. Since the magistrate's court now had the requisite jurisdiction, there was no basis for transfer. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to transfer the suit to the High Court is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION 387 OF 2012
Editorial Summary
1. Civil Appeal
2. Civil Practice & Procedure
3. Subject of main magistrate suit.
Running Down Cause
3. 1 Female adult.
3. 2 Passenger.
3. 3 Injuries/amputation to arm.
4. Application dated 11th July 2012
4. 1 To transfer suit to the High Court.
REASONS
4. 2 Case exceeds monetary jurisdictionof the subordinate court.
5. Application not opposed
6. Held:Application dismissed.
7. Case Law:Kagenyi – Vs – Musiramo & Another(1968) EA 43
8. Advocates:
i)Non – appearance for M/s R.M. Mutiso & Co Advocates for applicant
ii)E.N. Ntambu instructed by M/s Kairu & McCourt & Co Advocates for respondent
ROSE WANJIKU NJAU .…………..........………..…...…….… APPLICANT
VERSUS
NICHOLSON PHILIP
CAROLINE AKINYI
ENOCK OSINDE ONDIEK ………………...….…...…..…… RESPONDENT
R U L I N G
I.INTRODUCTION
1. The magistrate’s court case concerns a running down case in which the applicant sustained injuries in a motor vehicle accident. Her arm was amputated below the elbow. Realizing that the pecuniary award would be too low and the magistrate’s courts would not have jurisdiction to award her the sum required, she changed advocates (presumably) and filed this present application.
2. The application of 11th July 2012 sought orders to transfer the magistrate’s suit to the High Court on grounds that the subordinate courts lacked the monetary jurisdiction.
3. The applicant was not opposed by the respondent.
IIPROCEDURE
4. On the day called out for hearing, the advocate for the applicant failed to attend court. The advocate for the respondent was present. The matter proceeded for hearing under Order 12 r 3(2)
Civil Procedure Rules, where only the defendant attends court for hearing, the court may proceed exparte.
5. The respondent stated they had no objection to the said matter being transferred. The advocate did bring to the court’s attention that the jurisdiction of the magistrate’s court was enhanced in its monetary value to Ksh. 7 million under Gazette Notice Supplement 72 Act No. 12 on 12th July 2012.
6. The jurisdiction of the court was therefore perhaps not in issue.
7. The applicant’s main reasons for transferring the suit to the High Court was on grounds that the magistrate’s courts lacks preliminary jurisdiction to hear the same.
8. In the case law of Susan Muthoni Karanja – Vs – East African Breweries Misc No. 572/12, I relied on the case law of
Kagenyi – Vs – Musiramo & Another(1968) EA 43 in which the court held that where the subordinate court lacks jurisdiction to determine a matter, one court cannot transfer a suit to another court unless the suit had in the first instance been brought to a court which had jurisdiction to try it.
9. In the light of the new enhanced jurisdiction of the subordinate court and in the light of the above case law this application is accordingly dismissed with costs to the respondent.
DATED THIS 16TH DAY OF OCTOBER 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)Non – appearance for M/s R.M. Mutiso & Co Advocates for applicant
ii)E.N. Ntambu instructed by M/s Kairu & McCourt & Co Advocates for respondent