[2023] KEHC 25047 (KLR)

Sakinya Motors Ltd & another v Kemei (Miscellaneous Civil Application E038 of 2023) [2023] KEHC 25047 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25047 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application E038 of 2023

JRA Wananda, J

November 10, 2023

Between

Sakinya Motors Ltd

1st Applicant

Mary Wambui

2nd Applicant

and

James Kipkemboi Kemei

Respondent

Ruling

1. By the application brought by way of the notice of motion of dated 2/3/2023 and filed through Messrs Gichuki Karuga & Co Advocates, the applicants seek the following orders:a.[……..] Spent.b.[……..] Spent.c.That this honourable court be pleased to withdraw Eldoret CMCC No. 192 of 2020 and transfer it to the Chief Magistrate Court at Nakuru for hearing and disposal by a Magistrate of competent jurisdiction.d.Costs.e.Any other relief that this honourable court may deem necessary.

2. The application is expressed to be brought under section 1A, 1B, 3A, 15 and 18 of the Civil Procedure Act and “all other enabling provisions of the law”. It is premised on the grounds set out thereon and is supported by the affidavit sworn by the 2nd applicant, Mary Gichuki.

3. In her affidavit, the 2nd applicant deponed that she is the 2nd defendant in the said Eldoret Civil Suit No. E192 of 2020, the suit was filed by the respondent herein, the respondent conveniently filed the suit in Eldoret whereas he knew beforehand that the transaction forming the hallmark of the dispute happened in Nakuru, it is therefore proper to state that the cause of action happened in Nakuru, both applicants are domiciled and trade in Nakuru, the matter has been a non-starter due to indolence of the respondent who after obtaining favourable conservatory orders wantonly refused to move the file, it is the applicants who have been taking the initiative to have the suit fixed for mention and hearing, the respondent has never even complied with order 11 of the Civil Procedure Rules, the subject matter in the suit being a motor vehicle (which is subject to wear and tear) might be fully wasted as a result of the apparent delays, mischief and deceit, the applicants are apprehensive that the suit and their counterclaim might be rendered a mere academic exercise, they have spent a lot of money and also experienced great inconveniences in their attempts to have the suit heard, the court file at some point mysteriously disappeared and it took the applicants’ Advocates efforts including filing a miscellaneous application for the file to re-appear, they continue to suffer immensely due to the continued inaction in the suit to the extent that at the moment the file has no date allocated to it and that the above explains why the respondent filed the suit in Eldoret.

Respondent’s Replying Affidavit 4. The respondent opposed the Application vide his replying affidavit filed on 13/4/2023. He agreed that he filed Eldoret CMCC No. E192 of 2020 against the applicants, the suit concerns a motor vehicle, the Magistrates Court has been keen to hear the matter, a suit can be lodged at the nearest Court where the parties reside or where the cause of action arose, it is not true that he mischievously filed the suit in Eldoret, he resides in Eldoret and the subject vehicle is within the jurisdiction of the Eldoret Law Courts, it is not true that he has not been keen in prosecuting the suit, the truth of the matter is that the applicants have contributed immensely towards the delay by filing application after another and the worst of it all, filing an appeal against the orders of the lower court which appeal was later to be withdrawn hence a waste of the court’s time and resources and he is surprised that the applicants have filed the present application 3 years later, a clear indication that the applicants are forum shopping for a favourable court after the court granted the respondent the orders.

5. The respondent admitted that the applicants reside and carry on business in Nakuru but the allegation that he also resides in Nakuru is not true, it will greatly inconvenienced him and also the court if the suit was to be transferred to Nakuru, the same having been determined half way by the court, the same is scheduled for mention for purposes of fixing a hearing date, the application for transfer is an afterthought clearly manifested by the delay in bringing it up, he is not in a position to respond to the issue of the file missing in the registry as alleged by the applicants as the Court is the custodian of court files and not him, the applicants were in a hurry to file an application for reconstruction of a skeleton file while the file was in the registry, transfer of the suit will lead to further delay in the determination of the dispute, the same having begun in 2020, justice delayed is justice denied, and that allowing such kind of applications will create the bad precedent where one who is not comfortable with the court will rush to ask for transfer to a favourable court.

Hearing of the Application 6. The application was directed, and agreed, to be canvassed by way of written submissions. Pursuant thereto, the applicants filed their Submission on 26/6/2023. I did not come across any submissions filed by the respondent and neither was his counsel in court when this matter came up on 6/07/2023 for confirmation that the parties had filed their submissions.

Applicant’s Submissions 7. On jurisdiction of this court over the matter, counsel cited Section 18 of the Civil Procedure Act and the case of Bud & Blooms Ltd v Jonathan Balongo Okumu [2021] eKLR. On whether there are sufficient reasons to support the application, counsel submitted that the applicants have a myriad of reasons why this matter should be transferred to Nakuru. He invited the court to be guided by the applicants’ affidavit whose contents, according to him, have not been controverted.

Analysis and Determination 8. Having considered the application, affidavits, submissions and authorities filed, I find that the only issue for determination is “whether Eldoret CMCC No. E192 of 2020 should be transferred to the Nakuru Magistrates Court”.

9. The jurisdiction of the High Court to transfer suits from one court to another is provided under section 18 of the Civil Procedure Act 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; orb)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i try or dispose of the same; orii transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; oriii 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.”

10. In the present case, the applicants contend that he respondent mischievously filed the suit in Eldoret whereas he knew before hand that the transaction the subject of the dispute and by extension, the cause of action, arose in Nakuru. The applicants submitted further that they reside and carry on business in Nakuru and thus the suit filed before the Chief Magistrate’s Court in Eldoret should be transferred to Nakuru for hearing and determination.

11. On his part, the respondent contends that a suit can be lodged at the nearest court where the parties reside and or where the cause of action arose. He maintains that he resides in Eldoret and that the subject motor vehicle is within the jurisdiction of the Eldoret Law Courts.

12. I have perused the pleadings filed in the said suit as exhibited by the 2nd applicant to her affidavit. I note that in their counterclaim, the applicants raised the challenge that the right and proper court to hear and determine the dispute is the Chief Magistrates Court at Nakuru. They cited the same reasons preferred in the present application, namely, that the applicants’ principle place of business is in Nakuru, that it is a statutory requirement that every suit shall be instituted in a court within the local limits whose jurisdiction the defendant or each of the defendants at the time of commencement of the suit, actually and voluntarily reside or carry on business or personally work for again, that all the relevant documents and accounts relating to this suit are in the applicants’ offices in Nakuru, that in the premises it would cause great inconvenience, hardship and expense to the applicants, to advocates and the parties to the suit if the same was to be heard in Eldoret and that it is convenient and expedient for all the parties that the suit be heard and determined at Nakuru.

13. I note that the respondent has not controverted the said allegations, particularly that the cause of action arose in Nakuru where the applicants also reside and trade.

14. Section 15 of the Civil Procedure Act provides that when filing a suit, a plaintiff must take into account where the defendant resides or carries business or where the cause of action arose. It reads thus:“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—(a)the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or(b)any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or(c)the cause of action, wholly or in part, arises.”

15. Applying the said guidelines to the facts of this case, it is clear that the applicants’ counsel is right in his submission that the suit ought to have been filed in Nakuru where the cause of action arose and where the Applicants reside. However, the more important question is; will it be in the interest of justice to transfer the suit at this stage when the same has been under litigation before the Eldoret Magistrates Court since the year 2020, 3 years ago?

16. In the Ugandan High Court case of David Kabungu v Zikarenga & 4 others, Kampala HCCS No. 36 of 1995, the Judge had the following to say on the circumstances under which the order to transfer a suit may be granted:“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 ……"

17. Again, applying the above principles to the facts of this case, I am not persuaded that the “balance of convenience, questions of expenses, interest of justice and possibilities to undue hardship” as set out in David Kabungu v Zikarenga (supra) favours transferring the suit to Nakuru when the same has been under litigation in Eldoret Court for 3 years.

18. As aforesaid, the applicants filed a Counterclaim in the year 2020 and in it, challenged the territorial jurisdiction of the Eldoret Magistrates Court. They went further to give notice in the Counterclaim that “the defendants shall apply for transfer of this suit from Eldoret to Nakuru Chief Magistrates Court”. There is no explanation as to why, once the pleadings closed, the applicants never immediately followed up the notice with an application seeking transfer. There is also no explanation why the application is being filed now, after considerable litigation has presumably already taken place before the Magistrates Court.

19. The applicants have argued that the matter has been a non-starter due to indolence of the respondent who after obtaining favourable conservatory orders has failed to move the suit, that it is the applicants who have been taking the initiative to fix the suit for mention and hearing, that the respondent has never even complied with pre-trials, that the subject matter in the suit being a motor vehicle which might be fully wasted as a result of the delays, mischief and deceit in the matter, that the applicants are apprehensive that the suit and their counterclaim might be rendered a mere academic exercise.

20. The applicants contend further that at some point the court file mysteriously disappeared and it took the applicants’ advocates efforts including filing a miscellaneous application for the file to re-appear, that they continue to suffer immensely due to the continued inaction in the suit and that at the moment the file has no date allocated to it.

21. With due respect, the matters alleged are not recognized under section 18 of the Civil Procedure Act as grounds for transferring a suit. The said matters are issues that the judicial officers presiding over the Magistrates Court have the full mandate and competence to resolve, either in exercise of judicial powers or administratively, once the same are brought to their attention. In any event, either party to a suit can cause a suit to be fixed for trial, not just a Plaintiff. To therefore blame the respondent for indolence in fixing the suit for trial is not a convincing excuse.

22. I also note that the applicants have not controverted the respondent’s allegations that it is in fact the applicants who have contributed immensely towards the delay in finalization of the suit by filing various applications and also filing an appeal and later withdrawing it.

23. Considering all the foregoing, in my opinion, transferring the suit at this stage will be too disruptive, will further delay the conclusion of the suit and shall only cause or create unnecessary confusion. Transferring the suit at this stage will offend the provisions of section 1A (1) of the Civil Procedure Act which provides that the overriding objective of the Act and the rules made thereunder, is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. Transferring the suit at this stage will also offend section 1B (1) of the said Act which provides that in the furtherance of this overriding objective, the Courts are mandated to ensure the just determination of proceedings, efficient disposal of business of the court, the efficient use of available judicial and administrative resources and timely disposal of proceedings at a cost affordable by the parties.

24. In conclusion, I find that there is no justification why the suit, having been before the Eldoret Magistrates Court since 2020, cannot now be concluded by the same Court. I find no basis to transfer the suit from Eldoret to Nakuru at this late stage. Doing so will not be in the best interests of the parties but shall only be a clog and on judicial time.

Final Orders 25. In the end, I find that the applicants’ notice of motion dated 2/3/2023 lacks merit. Accordingly, the same is dismissed. However, considering the applicants’ grievances, which appear genuine, I impose no order on costs.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER 2023. .........................WANANDA J. R. ANUROJUDGE