[2014] KEHC 4017 (KLR)
The court found that the cause of action arose in Kisii and the defendant resides in Kisii. Therefore, the Chief Magistrate's Court at Nairobi lacks jurisdiction to hear and determine the matter. Since the application was unopposed and the grounds for transfer were merited, the court exercised its discretion under...
Source-derived case information.
- Citation
- [2014] KEHC 4017 (KLR)
- Parties
- Applicant: Samwel Motari Mogeni; Respondent: George Kiriama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1026 of 2010
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Transfer of Suit
- Outcome
- application allowed
- Judges
- DO Ogembo
- 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
Samwel Motari Mogeni
Applicant
George Kiriama
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from the Chief Magistrate's Court at Nairobi to the Chief Magistrate's Court at Kisii.
- 2 Whether the Nairobi court has jurisdiction over a cause of action that arose in Kisii.
- 3 Whether the defendant would suffer prejudice if the transfer is granted.
Ratio Decidendi
The court found that the cause of action arose in Kisii and the defendant resides in Kisii. Therefore, the Chief Magistrate's Court at Nairobi lacks jurisdiction to hear and determine the matter. Since the application was unopposed and the grounds for transfer were merited, the court exercised its discretion under the Civil Procedure Act to order the transfer of the suit to the Chief Magistrate's Court at Kisii. The court also found that the defendant would not suffer any prejudice as a result of the transfer. Accordingly, the application was allowed as prayed, with costs in the cause.
Court Disposition
application allowed
Orders
- The suit and file of NBI Civil Case No. 5464/09 is to be transferred to the Chief Magistrate’s Court at Kisii for trial and disposal.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
CIVIL CASE NO. 1026 OF 2010
SAMWEL MOTARI MOGENI ::::::::::::::::::::::::::::::: APPLICANT
VERSUS
GEORGE KIRIAMA ::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
R U L I N G
The application before the court is a Notice of Motion dated 22ND September 2010. It seeks the following orders:-
1. That this Honourable court be pleased to order the transfer of the suit and file of NBI Civil Case No. 5464/09 to the Chief Magistrate’s Court at Kisii to be tried and disposed of this application be in the cause.
2. That the costs of this application be in the cause.
The application is premised on the following grounds:-
That the Plaintiff’s Plaint was erroneously and inadvertently filed at the Chief Magistrate’s Court (Milimani) at Nairobi on the 19th August 2009.
That the cause of action arose in Kisii and as such the Chief Magistrate’s court at Nairobi has no jurisdiction to dispose of this matter.
That the Defendant resides in Kisii.
That the Defendant will not suffer any prejudice should the Orders sought be granted.
The application is supported by affidavit of MELANIE OCHIENGdated 22ND September 2010. The application is not opposed. The Application together with a Hearing Notice was served upon the Respondents/Advocates on 4th April 2014. Affidavit of Service to the effect was filed in court on 25th April 2014. Proof of service evident, I allowed the Applicant to proceed ex-parte on 27th May 2014.
I have carefully considered the application, and the grounds and affidavit in support thereof. I believe the application is merited on the grounds stated.
The application is allowed as prayed with costs in the cause.
DATED, READ AND DELIVERED AT NAIROBI
THIS 6TH DAY OF JUNE 2014
E. K. O. OGOLA
JUDGE
PRESENT:
M/s Gathoni Kariuki holiding brief for Sentei for Applicant
No appearance for Respondent
Teresia – Court Clerk