[2006] KEHC 319 (KLR)
The court held that although the High Court has the power to transfer suits under Section 18(1) of the Civil Procedure Act, the application for transfer should be made to the High Court within whose jurisdiction the subordinate court (in this case, Meru SPMC) is situated. Since the suit was filed at Meru SPMC, the...
Source-derived case information.
- Citation
- [2006] KEHC 319 (KLR)
- Parties
- Applicant: Small Holder Irrigation Scheme; Respondent: Tom Amino Nyamwaya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 477 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Legal Topics
- Transfer of Suits, Jurisdiction, Venue of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Small Holder Irrigation Scheme
Applicant
Tom Amino Nyamwaya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the High Court at Nairobi has jurisdiction to transfer a suit filed at Meru SPMC to Nairobi Milimani Commercial Courts.
- 2 Whether the application for transfer should have been made at the High Court at Meru.
Ratio Decidendi
The court held that although the High Court has the power to transfer suits under Section 18(1) of the Civil Procedure Act, the application for transfer should be made to the High Court within whose jurisdiction the subordinate court (in this case, Meru SPMC) is situated. Since the suit was filed at Meru SPMC, the proper forum for the transfer application is the High Court at Meru, not Nairobi. Consequently, the application before the Nairobi High Court was declined, and the applicant was directed to file the application at the High Court in Meru.
Court Disposition
application dismissed
Orders
- The application for transfer is declined.
- The applicant is directed to file the application for transfer at the High Court in Meru.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 477 of 2004
SMALL HOLDER IRRIGATION SCHEME…........….. APPLICANT
VERSUS
TOM AMINO NYAMWAYA ……………………….. RESPONDENT
RULING
Before me is an application by way of notice of motion brought under Section 18 of the Civil Procedure Act seeking orders that the suit filed by the Plaintiff being Meru SPMC No. 827 of 2003 be transferred from Meru SPM Court to Nairobi Milimani Commercial Courts for hearing and final determination. The application is premised on the grounds that the cause of action took place in Nairobi and that the defendant and its witnesses reside and work in Nairobi.
The application is also supported by an affidavit sworn by counsel for the defendant who avers that the suit was wrongly filed at Meru Law Courts while the cause of action took place in Nairobi.
Under the provisions of Section 18(1) of the Civil Procedure Act, the High Court has power to: -
(a) transfer any suit, appeal or other proceedings pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit or other proceedings pending in any court subordinate to it and thereafter –
(i) try or dispose of the same; or
(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
Ordinarily an order sought like in the instant suit ought to be granted but since the suit was filed at the SPMC Meru within the jurisdiction of the High Court at Meru, the applicant ought to have made his application at Meru High Court for the orders sought and for that reason I decline to grant the orders sought and order that the applicant do file his application for the transfer of the suit the subject matter of this application being Meru SPMC No. 827 of 2003 at the High Court in Meru.
Those are the orders of this court. I make no order as to costs.
Dated at Nairobi this 9th day of February, 2006.
……………………………….
J.L.A. OSIEMO
JUDGE.