[2004] KEHC 1435 (KLR)
The High Court at Nairobi determined that it lacked jurisdiction to hear the suit, as the cause of action arose outside its territorial jurisdiction and the defendant resided elsewhere. The court held that a consent order cannot cure a fundamental defect of jurisdiction, and any order purporting to transfer a suit...
Source-derived case information.
- Citation
- [2004] KEHC 1435 (KLR)
- Parties
- Plaintiff: Zipporah Ndunge Kanyanya; Defendant: Julius Kimaita Thiogura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 783 of 2003
- Procedural Posture
- Civil Case / Ruling on Jurisdictional Objection
- Outcome
- Plaint struck out for want of jurisdiction; leave granted to file fresh suit; costs to defendant.
- Legal Topics
- Jurisdiction of Courts, Territorial Jurisdiction, Transfer of Suits, Road Traffic Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah Ndunge Kanyanya
Plaintiff
Julius Kimaita Thiogura
Defendant
Procedural Posture
Civil Case / Ruling on Jurisdictional Objection
Legal Issues
- 1 Whether the High Court at Nairobi has jurisdiction to hear the suit originally filed in the Magistrate's Court at Milimani Commercial Courts.
- 2 Whether a consent order transferring a suit to a court lacking jurisdiction is valid or can be challenged.
- 3 Whether the case of Kageni vs Musano (1968) E.A. 43 is applicable to the present facts.
Ratio Decidendi
The High Court at Nairobi determined that it lacked jurisdiction to hear the suit, as the cause of action arose outside its territorial jurisdiction and the defendant resided elsewhere. The court held that a consent order cannot cure a fundamental defect of jurisdiction, and any order purporting to transfer a suit to a court without jurisdiction is invalid ab initio. The court exercised its power to strike out the plaint on its own motion due to incompetence arising from lack of jurisdiction, but granted the plaintiff leave to file a fresh suit, albeit out of time. Costs were awarded to the defendant.
Court Disposition
Plaint struck out for want of jurisdiction; leave granted to file fresh suit; costs to defendant.
Orders
- The plaint is struck out for want of jurisdiction.
- The plaintiff is granted leave to file a fresh suit out of time.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 783 OF 2003
ZIPPORAH NDUNGE KANYANYA ……………………….………………PLAINTIFF
VERSUS
JULIUS KIMAITA THIOGURA…………………………………………..DEFENDANT
RULING
The Respondent filed suit on the 3. 7.2000 in the Senior Principle Magistrate’s court a Milimani Commercial Case. The cause of action being a road traffic accident arise along Canary/Shamata Road, somewhere in Central Province.
The Defendant alleged that the Magistrate courts had no jurisdiction to try this case on territorial jurisdiction as per Section 15 of the said act. The reasons being that the cause of action arose in Nyadama and the Defendant lives and resides in Kagema.
It seems the Respondent stated that he was in fact seeking higher awards and instead of filing suit in the said Magistrate or High Court filed the same in the said residents magistrates court – commercial courts.
A Preliminary objection was raised that the court lacked jurisdiction. This objection was upheld by the magistrate who in fact stated that the court lacked jurisdiction but did not proceed to make any further orders.
The parties by consent transferred the suit to the High Court at Nairobi.
When it came for hearing, this court too stated that it lacked jurisdiction but gave an opportunity for the parties to address the court on this point namely:-
“1. Whether the court has jurisdiction to hear the case before it.
2. Whether this trial court can fault the consent order of another judge
2. Whether the case of Kageni vs Musano (1968) E.A. 43 is applicable in the present case.”
The advocate for the Respondent states he holds a lawful order of the High Court consenting to transfer the case to the High Court. The advocate for the Defendant claims though a consent may have been entered into when such order or decree amounts to an illegality the consent be reserved. He referred to theWasike v Wamboko case 1988 KLR 429 whereby the consent judgment in that case was inter alia – was found under section 67 (2) not to be an absolute bar in challenging a “decree passed with the consent of parties where parties seek to prove that the decree was invalid abi initio and should be rescinded”.
Can this court challenge the consent Order of another Judge? I believe the effect is not challenging the consent order but in effect a situation where the court on being seized that it has no jurisdiction to hear a suit it must recognize that the said consent is invalid ab initio
It is without a doubt that the Respondent was finishing for a court would give him a higher award. He is free to do so provided he does so within the High Court in Kenya which has limited jurisdiction to hear cases.
The suit should have therefore been just filed in the High court and not a magistrates court.
I am permitted, suo moto, to strike out a plaint if it is incompetent. I do so on grounds that this court has no jurisdiction to hear this suit. The Plaintiff must indeed file a fresh suit out of time. I grant him leave to do so.
I grant the costs of this suit to the Defendant.
Dated this 30th day of July, 2004 at Nairobi.
M. ANGAWA
JUDGE
Gitau J.H. Mwara & Co. Advocates for the plaintiff
Gacheru J and Co. Advocates for the defendant