[2015] KEHC 5610 (KLR)
The court found that although the application was brought under the wrong provisions, this did not invalidate it due to the substance of the application and the flexibility provided by Order 51 rule 10(2) of the Civil Procedure Rules. The applicants were not strangers to the suit, as they had been enjoined as third...
Source-derived case information.
- Citation
- [2015] KEHC 5610 (KLR)
- Parties
- Applicant: Waweru Peter; Applicant: Edwin Ngugi; Respondent: Vitalis Ouma Leo; Respondent: Mash Bus Services Ltd; Respondent: Amina Hamza Mohammed
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 16 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Transfer
- Outcome
- application allowed
- Judges
- EM Muchoki
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Waweru Peter
Applicant
Edwin Ngugi
Applicant
Vitalis Ouma Leo
Respondent
Mash Bus Services Ltd
Respondent
Amina Hamza Mohammed
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Transfer
Legal Issues
- 1 Whether the High Court can transfer a suit from one subordinate court to another under the Civil Procedure Act.
- 2 Whether the applicants are proper parties to seek the transfer and stay of proceedings.
- 3 Whether the suit was filed in the court with proper territorial jurisdiction.
Ratio Decidendi
The court found that although the application was brought under the wrong provisions, this did not invalidate it due to the substance of the application and the flexibility provided by Order 51 rule 10(2) of the Civil Procedure Rules. The applicants were not strangers to the suit, as they had been enjoined as third parties in related proceedings arising from the same accident. The court held that the suit should have been filed in the court nearest to where the cause of action arose, which was Naivasha, not Kisumu. Section 17 of the Civil Procedure Act empowers the High Court to transfer a suit from one subordinate court to another, and the court exercised this power to transfer the suit...
Court Disposition
application allowed
Orders
- The hearing of Kisumu CMCC 29 of 2013 is stayed.
- Kisumu CMCC 29 of 2013 is transferred to Naivasha Chief Magistrate's Court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. APPLICATION CAUSE NO. 16 OF 2015
WAWERU PETER......................................................1ST APPLICANT
EDWIN NGUGI...........................................................2ND APPLICANT
VERSUS
VITALIS OUMA LEO...............................................1ST RESPONDENT
MASH BUS SERVICES LTD....................................2ND RESPONDENT
AMINA HAMZA MOHAMMED...................................3RD RESPONDENT
RULING
This is an application for stay of proceedings in Kisumu CMCC 29 of 2013 and for transfer of the same to Naivasha Chief Magistrate`s court for hearing and determination. The gist of the application is that the cause of action which is a motor vehicle accident occurred along the Gilgil-Nakuru Road hence within the geographical jurisdiction of the Chief Magistrate`s court in Naivasha.
The application is faulted for being brought under the wrong provisions. It is contended that section 19 and 63(e) do not come to the aid of the applicants and I agree. It is also contended that the applicants herein are strangers to the suit that they seek to have transferred and as such they are incapable of obtaining the orders sought and that moreover Section 18 upon which this application remains to be brought under does not provide for transfer by the High Court of a suit from one subordinate court to another. It may indeed appear that the applicants are strangers to Kisumu CMCC 29 OF 2013. However, there is evidence that they were parties in Naivasha CMCC 720 of 2011 arising from the same accident, hence same cause of action, having been enjoined as third parties by the defendants therein. Indeed at paragraph 6of their written statement of defence in Kisumu CMCC 29 of 2013 the defendants also express the intention to enjoin the applicants as third parties and seek leave to do so. It would appear that that was done as there is on record a defence filed by them on 14th August, 2014. For all intents and purposes they are not strangers to the suit. Moreover, it is trite that a suit ought to be filed in the nearest court to the place the cause of action arose. (“See section 15(c) of the Civil Procedure Act”) The accident the subject of CMCC 29 of 2013 having occurred along the Gilgil-Nakuru Road the nearest court would be Naivasha Chief Magistrate`s court or even Nakuru Chief Magistrate`s court but not Kisumu. No explanation has been given for filing this suit in Kisumu. Section 18 of the Civil Procedure Act may not empower this court to move this case from one subordinate court to another but Section 17 of that Act does. By virtue of Order 51 rule 10(2) of the Civil Procedure Rules, the citing of the wrong provision ought not to vitiate the application.
Accordingly I allow the application and make orders as follows:-
a) That the hearing of Kisumu CMCC 29 of 2013 be and is hereby stayed.
b) That Kisumu CMCC 29 of 2013 be and is hereby transferred to Naivasha Chief Magistrate`s Court.
c) That the costs of this application shall be costs in the suit.
E.N. MAINA
JUDGE
Dated, signed, and delivered at Kisumu this.26th day of March, 2015
In the presence of:-
Mr. K`opot for the applicants
Mr. Otieno for the respondents
Moses Okumu- Court Assistant