[2009] KEHC 1015 (KLR)
The court found that although the application for transfer was not made at the earliest opportunity, the applicant's advanced age and residence in Nyeri constituted sufficient special circumstances to warrant the exercise of discretion under Section 17 of the Civil Procedure Act. The court held that the respondent...
Source-derived case information.
- Citation
- [2009] KEHC 1015 (KLR)
- Parties
- Applicant: Watson Wahome Njuru; Respondent: Prestige Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 434 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- Application allowed with costs to the respondent.
- Judges
- A. Ong’injo
- Legal Topics
- Transfer of Suit, Jurisdiction of Magistrates Courts, Discretion of Court, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Watson Wahome Njuru
Applicant
Prestige Investments Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the court should exercise its discretion to transfer Milimani CMCC No. 13945 of 2004 to Nyeri Chief Magistrate's Court for hearing and determination.
- 2 Whether the applicant's delay in seeking transfer should affect the grant of the order.
- 3 Whether the respondent would suffer prejudice if the transfer is granted.
Ratio Decidendi
The court found that although the application for transfer was not made at the earliest opportunity, the applicant's advanced age and residence in Nyeri constituted sufficient special circumstances to warrant the exercise of discretion under Section 17 of the Civil Procedure Act. The court held that the respondent would not suffer prejudice as he could be compensated by costs if successful. Accordingly, the court ordered the transfer of Milimani CMCC No. 13945 of 2004 to the Nyeri Chief Magistrate's Court for hearing and final determination, with the applicant to bear the costs of the application due to the delay in filing.
Court Disposition
Application allowed with costs to the respondent.
Orders
- Milimani CMCC No. 13945 of 2004 is transferred to the Nyeri Chief Magistrate's Court for hearing and final determination.
- Parties to appear before the Chief Magistrate, Nyeri on 23rd November, 2009 to fix a hearing date.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
Miscellaneous Application 434 of 2009
WATSON WAHOME NJURU……………………………………APPLICANT
VERSUS
PRESTIGE INVESTMETNS LIMITED………………..……RESPONDENT
R U L I N G
This application has been brought by way of a Notice of Motion under Section 3A, 17 and 18 of the Civil Procedure Act & Order 50 rule 1 of the Civil Procedure Rules. The said application seeks the following orders:
(a) THAT the Chief Magistrate’s Civil Case Number 13945 of 2004 at Milimani Commercial Courts be transferred to the Nyeri Chief Magistrate’s Court for hearing and final determination.
(b) THAT costs be in the cause.
During the hearing of the application, Mr. Kimano, the applicant’s counsel submitted that he was relying on the application and attached affidavit. On the face of the application, the grounds given in support thereof are as follows:
- That the defendant resides and works for gain in Nyeri.
- That the defendant is now of ill-health and of advanced age.
- That the Nyeri Chief Magistrate’s court has jurisdiction to hear and determine Milimani CMCC No. 13945 of 2004. Apparently the supporting affidavit repeats the same reasons.
On the other hand, Mr. Athuok for the respondent, relied on their grounds of opposition dated 6th July 2009. Further to the above, he explained that the offices of the defendant are based in Nairobi and that the original case was filed in the year 2000. After substantial litigation, the applicant paid a claim of Kshs.900,000/- before the matter was transferred to the lower court for hearing. In conclusion, Mr. Athuok stated that the matter has been in the High Court for five years and also for a similar period in the lower court.
After carefully considering the application together with the submissions by learned counsels, it is apparent that nobody has doubted the facts that the applicant has all along stayed in Nyeri and he is of advanced age. Though I agree entirely with the respondent’s counsel that the application should have been made at the earliest opportunity, one cannot overlook the advanced age of the applicant. In any event, the respondent will not suffer any prejudice since he will be adequately compensated in the event that the court rules in his favour. Given the above facts, I hereby exercise my power and discretion to invoke sec. 17 of the Civil Procedure Act to transfer this case to Nyeri Chief Magistrate’s Court for hearing. The parties are hereby directed to appear before the Chief Magistrate, Nyeri on 23rd November, 2009 with a view of fixing the hearing date. Since the applicant delayed in filing this application, he will bear the costs of the same.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open court in the presence of:
N/A for Applicant’s Counsel
Mr. Athuok - Respondent’s Counsel
MUGA APONDI
JUDGE
10TH NOVEMBER, 2009