[2018] KEHC 4923 (KLR)
The court found that the applicant's reasons for seeking transfer—loss of faith and alleged bias—were not substantiated by any evidence of impropriety or inability of the court to adjudicate fairly. The issues raised by the applicant pertained to the intended appeal and not to any jurisdictional or procedural defect...
Source-derived case information.
- Citation
- [2018] KEHC 4923 (KLR)
- Parties
- Appellant: Samuel Sawe Nyangena; Respondent: Japhet Kisaje; Respondent: Samuel Losem
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Transfer of Appeal
- Outcome
- application dismissed with costs
- Judges
- HK Chemitei
- Legal Topics
- Transfer of Proceedings, Jurisdiction of Court, Functus Officio, Bias Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samuel Sawe Nyangena
Appellant
Japhet Kisaje
Respondent
Samuel Losem
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Transfer of Appeal
Legal Issues
- 1 Whether the appeal should be transferred to Eldoret on grounds of alleged bias and loss of faith in the current court.
- 2 Whether the applicant has demonstrated sufficient cause or impropriety to justify transfer of the matter.
Ratio Decidendi
The court found that the applicant's reasons for seeking transfer—loss of faith and alleged bias—were not substantiated by any evidence of impropriety or inability of the court to adjudicate fairly. The issues raised by the applicant pertained to the intended appeal and not to any jurisdictional or procedural defect warranting transfer. The court emphasized that it was functus officio regarding the previous application for stay, and the applicant had not appealed that decision. The claim of bias was unsubstantiated, as the applicant had not demonstrated any conduct by the court that would compromise its impartiality. The court concluded that there was no cogent reason to transfer the...
Court Disposition
application dismissed with costs
Orders
- The application for transfer of the appeal to Eldoret is dismissed.
- The applicant shall bear the costs of this application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. 3 OF 2018
(Being an appeal from the Judgment Decree of the Senior Principal Magistrate Hon. P.C. Biwott in Kitale Civil suit No. 186 of 2016)
SAMUEL SAWE NYANGENA..............APPELLANT
VERSUS
JAPHET KISAJE.....................1ST RESPONDENT
SAMUEL LOSEM...................2ND RESPONDENT
RULING
1. The applicant herein prays vide his notice of motion dated 19/4/2018 that this matter be transfered to Eldoret. The Applicants grounds are that since his application for stay was not granted which led to his property being demolished, he is of the view that this court does not understand his plight and has thus lost faith, and this appeal should be transferred to Eldoret. His affidavit sworn on 19/4/2018 speak as much.
2. The Respondent on his part has filed grounds of opposition arguing that the application herein is frivolous and vexatious and cannot be granted. That the applicant has not preferred any appeal on the ruling dismissing his application for stay.
3. I have carefully perused the application and the only reason the applicant desires to have this matter transferred to Eldoret is that he has lost faith in this court after the ruling of 8/3/2018.
4. I have equally seen the attachments to his affidavit sworn on 19/4/2018 in support of this application especially annexture SS 2 showing some demolition taking place. Apparently the same was not placed before this court in the earlier application culminating into the ruling of 16/4/2018. Needless to say, this court is functus officio as regard that application. Apparently the appellant did not prefer any appeal against the same.
5. Turning now to the application at hand, I do not think that the applicant has sufficiently proved any impropriety on the part of this court. The issues which he has based the application are to do with the intended appeal and not why this matter ought to be transferred outside this jurisdiction.
6. As a matter of fact his claim was of Kshs 3,374,590 together with costs and interest. He lost it. How then does biasness from this court arise? His appeal is yet to be heard. He has not demonstrated that this court would not be able to adjudicate his appeal fairly.
7. In my view, the applicant is mixing up issues. The question of demolition of his property did not feature infact in the application which was dismissed.
8. Consequently, I do not see any cogent reason to warrant this matter to be transferred to Eldoret.
9. The application is dismissed with costs.
Delivered, signed and dated at Kitale this 17th day of July 2018.
______________
H.K. CHEMITEI
JUDGE
17/7/18
In the presence of:
Mfutu for Respondent
Applicant present
Kirong – Court Assistant
Ruling read in open court.