[2014] KEHC 3103 (KLR)
The court found that requiring the applicant to travel to Mombasa would be unreasonable and potentially hazardous to her health, as supported by medical evidence. The respondent's inconvenience, while noted, was not deemed to outweigh the applicant's medical incapacity, especially since his presence in Nairobi would...
Source-derived case information.
- Citation
- [2014] KEHC 3103 (KLR)
- Parties
- Applicant: Z Y S A; Respondent: Y S A
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 2 of 2010
- Procedural Posture
- Divorce Cause / Application for Transfer of Suit
- Outcome
- Application for transfer allowed.
- Judges
- JV Juma
- Legal Topics
- Transfer of Proceedings, Jurisdiction, Medical Incapacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Z Y S A
Applicant
Y S A
Respondent
Procedural Posture
Divorce Cause / Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from Mombasa to Nairobi due to the applicant's medical condition.
- 2 Whether the respondent's inconvenience outweighs the applicant's inability to travel.
Ratio Decidendi
The court found that requiring the applicant to travel to Mombasa would be unreasonable and potentially hazardous to her health, as supported by medical evidence. The respondent's inconvenience, while noted, was not deemed to outweigh the applicant's medical incapacity, especially since his presence in Nairobi would likely be required for only a single day to give evidence. The court exercised its discretion to transfer the suit to Nairobi, prioritizing the applicant's health and the interests of justice.
Court Disposition
Application for transfer allowed.
Orders
- The suit is transferred to the Family Division of the High Court in Nairobi for hearing and determination.
- Deputy Registrar to effect the transfer of the file.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 2 OF 2010
Z Y S A.……........................…PETITIONER
VERSUS
Y S A……………....……………RESPONDENT
RULING
By way of this Chamber Summons dated 4th April, 2014 the applicant seeks the transfer of the present suit from the High Court in Mombasa to Nairobi for hearing and determination. The application is supported by the affidavit of H M O sworn on 4th April, 2014. The reason given for this request for transfer is that the applicant had been involved in a motor vehicle accident and suffered a problem of reduced mobility and neural co-ordination. The annexed doctor’s report dated 3rd April, 2014 indicates that the doctor has advised the applicant not to travel. As such she would be unable to travel from Nairobi to Mombasa except with great risk to her health/life.
The application has been opposed. The respondent claims to have met the applicant in Mombasa on two occasions. In addition the respondent claims that he is unable to travel to Nairobi as he runs a busy medical practice in Mombasa and often has to attend to patients in the dead of the night.
I have carefully considered this application as well as the material availed. I am persuaded that it would be unreasonable to expect the applicant in her current circumstances to travel to Mombasa against medical advice. The respondent on the other hand can quite feasibly get another doctor to attend to his patients if he has to travel to Nairobi for the case. In any event I do not anticipate that the respondent will have to be present in Nairobi for more than a day – simply to give evidence. I therefore allow this application for transfer of the case. Deputy Registrar to effect transfer of this file to the Family Division of the High Court in Nairobi for hearing and determination. Costs in the cause.
Dated and delivered in Mombasa this 1st day of September, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Chebukaka h/b A. H. Malik for Petitioner
No Appearance for Respondent
Court Clerk Mutisya