[2013] KEELRC 570 (KLR)
The court held that before a suit can be transferred, it must be established that the court from which the transfer is sought had jurisdiction in the first instance. If there was no jurisdiction, there is no valid suit to transfer. The court also found that the Commissioner of Police was improperly joined as a party...
Source-derived case information.
- Citation
- [2013] KEELRC 570 (KLR)
- Parties
- Applicant: Sylvester Kioko Maitha; Respondent: The Commissioner of Police; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application ? of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- Application partially allowed; Commissioner of Police struck out as party; applicant to file amended Notice of Motion.
- Judges
- AN Makau
- Legal Topics
- Transfer of Suit, Jurisdiction, Striking Out Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Kioko Maitha
Applicant
The Commissioner of Police
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the Magistrates Court had jurisdiction over the original suit to permit its transfer.
- 2 Whether the Commissioner of Police was a proper party to the proceedings.
Ratio Decidendi
The court held that before a suit can be transferred, it must be established that the court from which the transfer is sought had jurisdiction in the first instance. If there was no jurisdiction, there is no valid suit to transfer. The court also found that the Commissioner of Police was improperly joined as a party in the application, as there was no basis for his inclusion from the original pleadings. Consequently, the court struck out the Commissioner of Police as a party and directed the applicant to file an amended Notice of Motion to enable the matter to proceed without unnecessary delay.
Court Disposition
Application partially allowed; Commissioner of Police struck out as party; applicant to file amended Notice of Motion.
Orders
- The name of the Commissioner of Police is struck out from the proceedings.
- The applicant's counsel is ordered to file an amended Notice of Motion.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
Civil Miscellaneous Application of [if gte mso 9]><![endif]
SYLVESTER KIOKO MAITHA......................................................….…APPLICANT
VERSUS
1. THE COMMISSIONER OF POLICE
2. THE HON. ATTORNEY GENERAL......................................RESPONDENTS
RULING
1. The Application before me is the one dated 10th April 2013 seeking to transfer a suit pending before the Magistrates court Nairobi being Civil Suit No. 12265 of 2006 for hearing and determination. 2. The Application was unopposed and the Court has had to review the pleadings filed to arrive at this decision.
3. The principles a Court has to consider before making a determination of this nature is whether there was jurisdiction in the first instance. In the event there was none, I would not be able to transfer that which does not exist as there is no suit so to speak.
4. I am minded that the suit was filed in 2006, the entities sued in the Magistrates Court existed then as per the Plaint but in this Application, the Commissioner of Police is made a party and there is nothing to suggest that he should have been included. I therefore strike out his name. In order not to to obstruct or delay the course of justice I order the Claimant's counsel to file an amended Notice of Motion without ado so as to enable the Court to proceed to hear the Application on a date to be fixed after this Ruling.
It is so ordered.
Dated and delivered at Nairobi this 21st day of May 2013
Hon. Mr. Justice Nzioki wa Makau
Judge
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