[2017] KEHC 1453 (KLR)
The High Court found that the issue of territorial jurisdiction of the Senior Resident Magistrate’s Court in Winam to try the suit had already been determined by a competent court in Winam SRMCC No. 33 of 2016, where the applicant's preliminary objection was dismissed. Accordingly, the High Court declined to...
Source-derived case information.
- Citation
- [2017] KEHC 1453 (KLR)
- Parties
- Applicant: Samuel M. Onyango t/a S.M.Onyango & Associates Advocates; Respondent: Harry Bob Mosi t/a Mosi & Company Advocates
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 182 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed with costs to the respondent
- Judges
- TW Cherere
- Legal Topics
- Transfer of Suit, Territorial Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel M. Onyango t/a S.M.Onyango & Associates Advocates
Applicant
Harry Bob Mosi t/a Mosi & Company Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the High Court should transfer Winam SRMCC No. 33 of 2016 to the Chief Magistrates Milimani Commercial Court for disposal.
- 2 Whether the issue of territorial jurisdiction has already been determined by a competent court.
- 3 Whether the present application constitutes an abuse of court process.
Ratio Decidendi
The High Court found that the issue of territorial jurisdiction of the Senior Resident Magistrate’s Court in Winam to try the suit had already been determined by a competent court in Winam SRMCC No. 33 of 2016, where the applicant's preliminary objection was dismissed. Accordingly, the High Court declined to entertain the application to transfer the suit, holding that it would amount to relitigating an issue already decided. The court concluded that the application was an abuse of the court process and lacked merit, warranting its dismissal with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The notice of motion dated 20.9.16 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO 182 OF 2017
SAMUEL M. ONYANGO t/a S.M.Onyango& Associates Advocates..........APPLICANT
VERSUS
HARRY BOB MOSI t/a Mosi & Company Advocates..............................RESPONDENT
RULING
By a notice of motion dated 20. 9.16 brought under Article 159 of the Constitution of Kenya,2010, Sections 1,A, 1B, 3A and 18(1)(a) and (2) of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 rule 1 of the Civil Procedure Rules 2010 and all enabling provisions; the applicant prays for orders:-
1. THAT this Honourable Court be pleased to transfer WinamSRMCC NO. 33 of 2016SAMUEL M. ONYANGO t/a S.M.Onyango & Associates Advocates v HARRY BOB MOSI t/a Mosi & Company Advocatesfrom Senior Resident Magistrate’s Court in Winam Kisumu to Chief Magistrates Milimani Commercial Court for disposal
2. THAT the costs be provided for
The application is based on the grounds among others that the cause of action arose in Nairobi and thatwitnesses are advocates who reside and work for gain in Nairobi within the jurisdiction of Chief Magistrates Court Nairobi.
The application is supported by an affidavit sworn by the applicant on 25th August 2016 in which he reiterates the grounds on the face of the application. Annexed to the supporting affidavit are copies of pleadings filed inWinam SRMCC NO. 33 of 2016.
The application is opposed on the grounds set out in a replying affidavit sworn by the respondent in which he avers that the applicant has raised a similar objection as this one inWinam SRMCC NO. 33 of 2016. Attached to the affidavit is a copy of the objection regarding the territorial jurisdiction of Senior Resident Magistrate’s Court in Winam to try this suit.
I have considered the notice of motion in the light of the affidavits and annexures on record and on the submission by both counsels. This court called for Winam SRMCC NO. 33 of 2016 andestablished that the learned trial magistrate had by a ruling delivered on 6. 10. 17 dismissed the preliminary objection regarding the territorial jurisdiction of that court that had been raised by the applicant herein.
Section 6 of the Civil procedure act chapter 21 laws of Kenya provides:-
Nocourtshallproceedwiththetrialofanysuitorproceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the sameoranyothercourthavingjurisdictioninKenyatogranttherelief claimed.
The issue of the territorial jurisdiction of the Senior Resident Magistrate’s Court in Winam to try this suit has already been determined by a court of competent jurisdiction. This court therefore declines the invitation to deal with an issue that is directly and substantially the same as the one that has already been determined in Winam SRMCC NO. 33 of 2016.
The upshot this is that the notice of motion dated 20. 9.16 is considered and found to be an abuse of the court process. The same has no merit and it is accordingly dismissed with costs to the respondent.
DATED AND DELIVERED THIS 14thDAY OF December, 2017
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicant - N/A
Respondents - Ms Ayieta