[2011] KEHC 3964 (KLR)
The High Court held that it lacked jurisdiction to transfer a suit from the Gichugu Magistrate's Court to itself because the magistrate's court did not have the requisite pecuniary jurisdiction to entertain the claim at the time of filing. The applicant's attempt to amend the plaint to increase the claim amount did...
Source-derived case information.
- Citation
- [2011] KEHC 3964 (KLR)
- Parties
- Applicant: Rosemary Wambui Miano; Respondent: Kenya Commercial Bank, Kerugoya Branch
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 125 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Transfer of Suits, Pecuniary Jurisdiction, Amendment of Pleadings, Bank Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wambui Miano
Applicant
Kenya Commercial Bank, Kerugoya Branch
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 has jurisdiction to transfer a suit from a magistrate's court that lacked pecuniary jurisdiction at inception.
- 2 Whether the applicant can cure the jurisdictional defect by amending the plaint to increase the claim amount.
Ratio Decidendi
The High Court held that it lacked jurisdiction to transfer a suit from the Gichugu Magistrate's Court to itself because the magistrate's court did not have the requisite pecuniary jurisdiction to entertain the claim at the time of filing. The applicant's attempt to amend the plaint to increase the claim amount did not cure the original jurisdictional defect. The proper course was for the applicant to withdraw the suit from the court lacking jurisdiction and file a fresh suit before a court with appropriate jurisdiction. The application for transfer was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 3rd November 2010 is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPLICATION NO. 125 OF 2010
ROSEMARY WAMBUI MIANO.……………..….......….......APPLICANT
VERSUS
KENYA COMMERCIAL BANK
KERUGOYA BRANCH…………………………………..RESPONDENT
R U L I N G
1Rosemary Wambui Miano, the applicant herein seeks to have SRMCC No. 58 of 2009 filed by her in Gichugu Court transferred to the High Court of Kenya at Embu.
2. The application is opposed by Kenya Commercial Bank Ltd. who is the defendant in the Gichugu suit (hereinafter referred to as the respondent).
3. I have given due consideration to this application. It is apparent from the affidavit in support and the annexures thereto, that the applicant seeks to have the suit transferred to the High Court because she intends to amend her claim to include a prayer for judgment for Kshs.5,477,065 being the value of goods and stock allegedly removed from the applicants’ premises by the respondent and carted away.
4. From the copy of the amended plaint it is evident that the applicant’s original claim was for injunction and also return of her property and stock which were removed and confiscated by the respondent. The value of the property and stock being well above the pecuniary jurisdiction of the Gichugu court whose jurisdiction is admitted to be KShs.800,000/= only, it is evident that the applicant’s claim was beyond the pecuniary jurisdiction of the Gichugu Court from its inception.
5. As was stated by the Court of Appeal in Nyandundo Primary School & Another Vs Stephen Waweru, Civil Appeal No. 179 of 1999 this court has no jurisdiction to transfer a suit from one court to another unless the suit was in the first instance filed in the court with jurisdiction to entertain the suit. In this case the applicant having filed her suit in a court which lacks jurisdiction to entertain her claim, she has no alternative but go back to the drawing board, withdraw the suit filed in the court lacking jurisdiction, and file a new suit before a court with appropriate jurisdiction.
6. Accordingly the application dated 3rd November 2010 is dismissed with costs.
H. M. OKWENGU
JUDGE
Delivered, dated and signed at Embu this 7th day of February 2011.
In the presence of:
OKWARO HOLDING BRIEF FOR MIANO ADVOCATE FOR THE APPLICANT
ABSENT………………….……ADVOCATE FOR THE RESPONDENT
NJUE…………………………………………….……….COURT CLERK