[2007] KEHC 599 (KLR)
The court found that the application to transfer the suit was incompetent because it was not accompanied by copies of the pleadings, specifically the plaint and any defence. The absence of these documents prevented the court from properly considering the merits of the application. As a result, the application was...
Source-derived case information.
- Citation
- [2007] KEHC 599 (KLR)
- Parties
- Plaintiff: Spin Knit Dairy Co.; Defendant: Benson Wangai Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1308 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application struck out as incompetent
- Judges
- JL Osiemo
- Legal Topics
- Transfer of Suit, Jurisdiction, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Spin Knit Dairy Co.
Plaintiff
Benson Wangai Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the application to transfer the suit to the Chief Magistrate’s Court Nakuru is competent in the absence of copies of pleadings.
- 2 Whether the court should grant the order to transfer the suit given the circumstances.
Ratio Decidendi
The court found that the application to transfer the suit was incompetent because it was not accompanied by copies of the pleadings, specifically the plaint and any defence. The absence of these documents prevented the court from properly considering the merits of the application. As a result, the application was struck out, but the applicant was granted liberty to file a competent application in the future. The court emphasized the necessity of complying with procedural requirements when seeking transfer of suits under the Civil Procedure Act and Rules.
Court Disposition
application struck out as incompetent
Orders
- The application is struck out for want of accompanying pleadings.
- The applicant is at liberty to file a competent application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI
Misc Civil Appli 1308 of 2004
SPIN KNIT DAIRY CO.…..……………………….……………………..PLAINTIFF
VERSUS
BENSON WANGAI MWANGI……………………...………………DEFENDANT
RULING
By this Notice of Motion dated 27th September 2004 and expressed to be brought under Section 18 (1) (a) of the Civil Procedure Act and Order L Rule 1 of the Civil Procedure Rules seeks orders that this Honourable court be pleased to transfer civil suit – Nairobi PM CC NO. 6758 OF 2004 Milimani Commercial Courts to the Chief Magistrate’s Court Nakuru for hearing and final disposal.
The application is based on the grounds:
(1) That the cause of action arose within the local jurisdictions of the Chief Magistrate’s Court – Nakuru.
(2) That there will be no prejudice to the Defendant should the orders sought in this application be granted.
The application is also supported by an affidavit sworn by John Oscar Juma on 29th September 2004 in which he avers that this claim arises out of a traffic road accident which occurred along Nakuru – Eldoret Highway involving motor vehicle registration No. KAQ 360A and motor vehicle registration NO. KAL 961Q; that at the time of filing this suit it was within the Plaintiff’s knowledge that the Defendant resides in Nairobi, that the suit was inadvertently filed in Nairobi, that the cause of action arose in Nakuru within the local jurisdiction of the Chief Magistrate’s Court Nakuru that it is in the interest of justice that the suit be transferred to Nakuru and that the Respondent stands to suffer no prejudice should the court grant the orders sought.
Although there is on record a return of service filed by one Maurice Odhiambo, a process server who depones that he upon receiving a hearing notice and copy of the application travelled to Nakuru and effected service upon M/S Ogola Okeke – Advocate who acknowledged receipt but declined to sign on the originals on the ground that he has no instructions from his client there is no evidence that the said advocate is on record acting for the Defendant.
Such an application should be accompanied with copies of pleadings and more so the plaint and also the defence if any.
In the absence of the said copies of the pleadings, this application is incompetent and therefore it is struck out. But the Applicant is at liberty to file a competent application. Those are the orders of this court.
Dated and delivered at Nairobi this 10th day of May 2007.
J.L.A. OSIEMO
JUDGE