[2007] KEHC 862 (KLR)
The court held that both the cause of action and the residence of the defendant were in Mombasa, making it the proper venue for the suit under Section 15 of the Civil Procedure Act. The court rejected the argument that the applicant was required to seek a review of the transfer order in Nairobi, finding that the...
Source-derived case information.
- Citation
- [2007] KEHC 862 (KLR)
- Parties
- Appellant: Salim Ali Ringi; Respondent: Diamond Trust Bank Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 575 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application allowed
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Venue of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Ali Ringi
Appellant
Diamond Trust Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether Civil Suit Number 6463 of 2005 should be transferred from the Chief Magistrate’s Court at Milimani, Nairobi to the Chief Magistrate’s Court at Mombasa for hearing and final disposal.
- 2 Whether the Nairobi court has jurisdiction given the residence of the defendant and the place where the cause of action arose.
- 3 Whether an admission of jurisdiction in a defence can confer jurisdiction on a court.
Ratio Decidendi
The court held that both the cause of action and the residence of the defendant were in Mombasa, making it the proper venue for the suit under Section 15 of the Civil Procedure Act. The court rejected the argument that the applicant was required to seek a review of the transfer order in Nairobi, finding that the applicant was within his rights to apply for transfer to Mombasa. The court further held that an admission of jurisdiction in a defence, especially one made before the suit was transferred to the lower court, does not confer jurisdiction where it does not exist. Accordingly, the application for transfer was allowed.
Court Disposition
application allowed
Orders
- Civil Suit Number 6463 of 2005 at the Chief Magistrate’s Milimani Nairobi is hereby transferred to the Chief Magistrate’s Court at Mombasa for hearing and final disposal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Civil Appli 575 of 2006
SALIM ALI RINGI…………………………………………APPELLANT
VERSUS
DIAMOND TRUST BANK LIMITED…………………RESPONDENT
R U L I N G
This is an application under Sections 3A, 15,17 and 18 of the civil Procedure Act for the transfer of Civil Suit Number 6463 of 2005 from the Chief Magistrate’s court at Milimani, Nairobi to the Chief Magistrte’s Court at Mombasa for hearing and final disposal. It is based on the grounds that the contract giving rise to that suit was entered into at Mombasa where the defendant also resides.
Mr. Nyaribo Counsel for the Respondent, while conceding that the cause of action arose at Mombasa where the defendant also resides, nevertheless opposed the application on the grounds that the contract itself was performed in Nairobi and the applicant admitted in his defence that the court at Nairobi has jurisdiction. He also accused the applicant of indolence arguing that the suit has been pending for hearing in Nairobi since 1999, now about seven years.
Section 15 of the Civil Procedure Act is quite clear as to where suits should be filed – in the court within the local limits of whose jurisdiction the defendant resides, carries on business or works for gain or where the cause of action arose.
In this case not only did the cause of action arise at Mombasa but the defendant/Applicant also resides there. There is no reason whatsoever why the suit was filed in Nairobi even though in the High Court which has country-wide jurisdiction.
I do not agree with Mr. Nyaribo that the applicant should have applied to the High Court at Nairobi which transferred the suit to the Chief Magistrate’s Court at Nairobi to review its order of transfer and have the suit rerouted to Mombasa. That was not necessary. The applicant is within his rights to make this application. Nor do I agree with him that the admission in the defence that the court at Nairobi has jurisdiction in this matter. That admission was made in the defence filed in the High Court before the suit was transferred to the to the lower court. In any case parties cannot even by consent give to the court jurisdiction which it does not have.
I therefore allow this application and order that Civil Suit Number 6463 of 2005 at the Chief Magistrate’s Milimani Nairobi is hereby transferred to the Chief Magistrate’s Court at Mombasa for hearing and final disposal.
DATED AND DELIVERED THIS 9TH DAY OF FEBRUARY 2007
D.K. MARAGA
JUDGE