[1954] EACA 44

#### ORIGINAL CIVIL

### Before CRAM, Ag. J.

# KENYA GLASS WORKS LTD., Applicants (Defendants)

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# AUGUSTO MEUCCI, Respondent (Plaintiff)

# Civil Suit No. 326 of 1954

Civil Procedure and Practice—Application to transfer suit—Civil Procedure Ordinance—Section 18—Forum conveniens—Section 11—Subordinate Court with concurrent iurisdiction—Kenya (Colony) Order in Council, 1921— Article 4 (2). iurisdiction of Supreme Court in petty suits—Whether principle one of jurisdiction or procedure—Duty on plaintiff to institute suit in Court of lowest grade—"Competency" defined—Costs.

The plaintiff instituted a suit, for damages for breach of contract, in the Supreme Court Registry at Nairobi. Damage was alleged at Sh. 1,750. Before that time, in terms of section 4 of the Courts Ordinance (Cap. 3), a Resident Magistrate, at Mombasa, had been given additional pecuniary jurisdiction over Europeans up to Sh. 3,000. The breach of contract was alleged at and the defendant company was domiciled in Mombasa. The defendant company applied by motion for transfer of the suit to the Court of the Magistrate at Mombasa on the grounds that it had 10 witnesses who, if called away, would cause a total stoppage of work and a daily production loss of Sh. 4.500. In reply the plaintiff deposed that his employers would be unwilling to give him leave of absence and that he had one witness in Nairobi. He did not deny the applicant's statements.

Held (28-5-54)—(1) It was not impossible for the plaintiff and his witness to attend for hearing at Mombasa which was, on the affidavits without doubt, the forum conveniens. The suit would therefore be transferred to Mombasa for hearing.

(2) By reason of the jurisdiction over all persons and all matters, given to the Supreme Court by Article 4 (2) of the Kenya (Colony) Order in Council, 1921, the Supreme Court had jurisdiction to hear all suits however small the sum sued for.

(3) The jurisdiction of the Supreme Court was neither taken away nor limited by the granting of a concurrent jurisdiction in petty suits to subordinate courts which did not thereby achieve an exclusive jurisdiction.

(4) Section 11 of the Civil Procedure Ordinance legislates not on jurisdiction but on procedure. The choice of *forum* is the plaintiff's and a duty is cast on him to select<br>the forum indicated by the law of procedure which is the court of the lowest grade competent to try the suit.

(5) "Competent" in section 11 of the Civil Procedure Ordinance has reference to the jurisdiction of the subordinate court. In this sense jurisdiction means the extent of the authority of the Court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction.

(6) The Magistrate concerned was competent to hear the suit inasmuch as the alleged breach of contract arose within the local limits of his jurisdiction, was a suit of a sort he was entitled to hear and was within his extended pecuniary jurisdiction. The suit would, therefore, be transferred to that Magistrate for hearing.

(7) The plaintiff had erred, not in jurisdiction but in procedure, in selecting his tribunal and, in the circumstances, had no excuse for his error. In making such an error he invited condemnation in all costs thrown away.

(8) The costs of the opposed application were ordered to be the applicant's in any event and, as these costs could not be left in suspension, were to be taxed and paid forthwith. The plaintiff, if successful, would not be entitled to any more costs than if he had instituted the suit in the subordinate Court. The defendant, if successful, would be entitled to his costs in the Supreme Court to date. All other costs were at the discretion of the Magistrate.

Cases cited: Nidhi Lal v. Mazhar Husain, (1885) I. L. R. 7 All. 230; Matra Mondal v. Hari Mohun Mullick, (1890) I. L. R. 17 Cal. 155; Krishnasami v. Kanakasabai, (1891) I. L. R. 14 Mad. 183.

D. N. Khanna for the applicant. $D$

Kean for the respondent.

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RULING.—This suit was instituted in the Supreme Court Registry at Nairobi. The sum sued for is Sh. 1,750 with interest. The defendant company applies for an order transferring the suit for hearing to the Subordinate Court of the Resident Magistrate there, Mr. Wyn Jones. Mr. Wyn Jones, by order of the Governor, in terms of section 4 of the Courts Ordinance (Cap. 3), has additional pecuniary jurisdiction up to Sh. 3,000 in civil matters.

The applicant invokes section 18 of the Civil Procedure Ordinance (Cap. 5), which runs:-

"18. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as may be desired to be heard, or of its own motion without such notice, the Supreme Court may at any stage: $-$

(a) transfer any suit $\ldots$ pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. . . ."

The primary principle invoked is that Mombasa is the *forum conveniens*. The affidavit in support of the motion deposes that the defendant company carries on a factory in Mombasa which would be brought to a standstill if the 10 witnesses for the defence were called away, which inevitably would be for several days were the case heard in Nairobi. The daily loss of production, it is said, would be Sh. 4,500. The replying affidavit—and it must not be overlooked that it is an affidavit made after delivery of the applicant's affidavit—does not seek to deny these statements. It merely puts forward the weight of inconvenience on part of the plaintiff and an unnamed witness. It is alleged that the plaintiff's employers would be reluctant to give him leave of absence, and this may well be so but that does not amount to impossibility of attendance at Mombasa, nor is it alleged that the plaintiff would be discharged if he followed his suit to Mombasa. On the aspect of convenience, the defendant company would be by far the more gravely prejudiced and on this ground the applicant would be entitled to an order that Mombasa is the forum conveniens.

The secondary principle invoked by the applicant is that the suit should be transferred for hearing to the Court of Mr. Wyn Jones at Mombasa, he having pecuniary jurisdiction. In support of this principle, section 11 of the Civil Procedure Ordinance is founded upon:-

"11. Every suit shall be instituted in the court of the lowest grade competent to try it. . . ."

In my respectful view, this is a rule dealing not with jurisdiction but with procedure. The object of the rule is merely to ensure that the Supreme Court should not be overcrowded with petty suits. While it lays down that a suit shall be instituted in the court of the lowest grade competent to try it, it is not intended to, and does not, oust the jurisdiction of the Supreme Court. Nidhi Lal v. Mazhar Husain (1885), 7 All. 230. In my view such a rule could not oust the jurisdiction of the Supreme Court over all persons and all matters in the Colony set up by Article 4 (2) of the Kenya Colony Order in Council, 1921, or given by section 16 of the Courts Ordinance (Cap. 3). In my opinion, however small the

pecuniary value of a suit, the Supreme Court has jurisdiction to try it. The principle may be expressed in some such form as that in a large number of petty suits certain subordinate courts have concurrent jurisdiction with the Supreme Court. Section 11 of the Civil Procedure Ordinance in no way limits or excludes the jurisdiction of the Supreme Court. The section is not intended to give in many petty suits an exclusive jurisdiction to certain subordinate courts. Matra Mondal v. Hari Mohun Mullick (1890), 17 Cal. 155; Krishnasami v. Kanakasabai (1891), 14 Mad. 183. In conclusion, the Supreme Court has jurisdiction to try this suit, but that is not the final word in the matter.

I have to consider if the court presided over by Mr. Wyn Jones is competent to hear the suit. "Competent" in this aspect, as used by section 11 of the Civil Procedure Ordinance, plainly relates to the jurisdiction of the subordinate Court. In this sense, jurisdiction means the extent of the authority of the Court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction. Looking to the subject matter of the suit. I find that it is one for damages for alleged breach of contract. that is subject matter which is competent for hearing before a Resident Magistrate. Having regard to section 14 of the Civil Procedure Ordinance which deals with the local limits of the jurisdiction of subordinate Courts in relation to suits for compensation for wrongs to the person, I observe from the plaint and affidavits that the alleged wrong arose at Mombasa, so that the suit is competent within the local limits of a subordinate Court at Mombasa. Finally, as I have already noticed. Mr. Wyn Jones, the Magistrate concerned, has pecuniary jurisdiction up to Sh. 3,000 so that the suit is within his competence.

In the result, this Court will make use of a rule of procedure viz., section 18 of the Civil Procedure Ordinance, to transfer this suit for hearing to Mr. Wvn Jones. I emphasize once once again that this Court has jurisdiction. The matter is one of procedure. The rule of procedure is that a suit of this pecuniary value ought to be tried by the Court of the lowest grade competent to try it.

Lastly I have to decide how the costs are to be apportioned. I must first notice that I may not find that the plaintiff is disentitled to costs because he brought his suit in a Court without jurisdiction. In my view there is a burden laid upon plaintiffs, a mandatory rule of procedure, that before instituting a suit, they must first consider what is the Court of the lowest grade competent to try it. This rule is subject to a proviso that, for good and sufficient cause, a petty suit of small pecuniary value may be instituted in the Supreme Court if the advocate or party certifies there is a good and sufficient reason for so instituting it. Such a reason might be for example: a difficult point of law; law on the point undecided; prejudice to the plaintiff arising out of the interest of the Magistrate or the local feelings engendered; or some virtual impossibility of attending at a distance; or consent; or some such cause. As good reason, however, I am unable to admit the mere pleasure or convenience of the plaintiff. Were I to rule so, such a precedent might encourage parties living for the time being, say, in Eldoret, to institute petty suits at their pleasure in the District Registry of the Supreme Court there, whereas the forum required by procedure was Nairobi or elsewhere. Such a ruling would tend to render section 11 of the Civil Procedure Ordinance nugatory.

In this instance, in my view, the plaintiff erred in procedure. There was no excuse for it. He had legal advice. The defendant company was domiciled in Mombasa. The alleged breach of contract arose in Mombasa. The Magistrate, within the local limits of whose jurisdiction Mombasa lay, had at the time of instituting the suit been given additional powers. The notice granting these powers had been duly published in the Gazette, according to law, and it had been published there many months before the plaintiff took action. The usual consequence of a failure to follow the proper procedure is a mulcting in costs.

One of the provisos to section 11 reads: $\rightarrow$

"And provided further that any suit may be instituted in the Supreme Court which could have been commenced in a subordinate court, then and in every case the following provisions shall apply:—

Subject to the proviso hereinafter contained should the plaintiff recover a sum less than Sh. 400 he shall not be entitled to any costs and if he shall recover a sum of Sh. 400 upwards, but not exceeding Sh. 1,500 . . . he shall not be entitled to any more costs than he would have been entitled to if the suit had been brought in such subordinate court:

Provided that in any suit a judge of the Supreme Court may, if satisfied that there was good reason for bringing such suit in that court, make such order as to costs as to him may seem just".

That statutory provision accepts, at one and the same time, the universal jurisdiction of the Supreme Court within the Colony and the rule of procedure that suits should be brought in the Court of the lowest grade competent. It makes mandatory rules as to costs, subject to the discretion of the Judge.

In my view, that proviso looks to the statutory pecuniary jurisdiction given to subordinate Courts of the first class given by section 17 of the Courts Ordinance which is restricted to Sh. 1,500. That is even if the maximum amount recoverable by a plaintiff in a subordinate Court is adjudged by the Supreme Court, the ordinary rule is that costs are recoverable on the subordinate Court scale only.

As a corollary to this, in any event, the defendant would have his costs on the Supreme Court scale if successful since the choice of forum is not his.

I now have to consider in what manner I should exercise the discretion as to costs given to this Court by section 27 of the Civil Procedure Ordinance. In my opinion, I ought to carry the principle of the proviso to section 11 into the region of additional pecuniary jurisdiction given to particular magistrates by section 4 of the Courts Ordinance. This is only reasonable for, were I to rule otherwise, plaintiffs at their pleasure could obtain the costs of instituting suits, in the Supreme Court, procedurally only proper before a particular Magistrate, before the order for transfer. In such manner defendants would be prejudiced by additional costs and the intention to relieve the burden on this Court, in part, foiled.

So far, therefore, as the costs of this opposed application are concerned, the ordinary rule as to success shall prevail and the defendants will have their costs in any event. After consideration, I have come to the conclusion that these costs cannot be left in a state of suspension but must be taxed and paid forthwith.

As regards the costs of the suit to date, should the plaintiff be ultimately successful, then he shall not be entitled to any more costs than he would have been entitled to if the suit had been instituted in Mr. Wyn Jones's Court. Should the defendant be ultimately successful then he will have his costs in this Court to date. All other costs are, of course, within the discretion of the Magistrate.