Agoro Oloo & 2 others v Oloo & another [2022] KEHC 13541 (KLR)

Agoro Oloo & 2 others v Oloo & another (Civil Suit E002 of 2021) [2022] KEHC 13541 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13541 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Suit E002 of 2021

RPV Wendoh, J

October 3, 2022

Between

Casmiel Agoro Ogola

1st Applicant

Joseph Illa Oloo

2nd Applicant

Peter Onyango Oloo

3rd Applicant

and

Charles Ngare Oloo

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The applicants filed the instant Notice of Motion dated 7/6/2021 and filed in court on 14/6/2020 through the firm of H. Obach & Co. Advocates. They seek the following orders;-a.Spent.b.That this Court be pleased to order the transfer of the Civil Suit No. 14 of 2019 at the Principal Magistrate’s Court in Rongo to any other Court with jurisdiction.c.That costs be in the cause.

2. The application is premised on the grounds on its face and the supporting affidavit of Casmiel Agoro one of the applicants. He deponed as follows:-i.That the substratum of the application is that the suit was instituted upon a successful prosecution of a criminal matter Criminal Case No. 178 of 2017, R vs Casmiel Agoro & 2 Others.ii.The accused persons were acquitted by the court under section 215 of the Criminal Procedure Act.iii.That this matter was handled to its conclusion by the Principal Magistrate’s Court at Rongo.iv.That the plaintiffs in this matter erroneously filed a malicious prosecution suit in the Principal Magistrate’s Court in Rongo but the Court 2 Magistrate has since been transferred and no replacement has been brought.v.That the court sitting in Rongo cannot handle this matter since it handled the criminal matter.vi.There will be no bias on the part of the Magistrate’s court in Migori in trying this matter.vii.That the right to fair hearing is a constitutional right that is enshrined in the Constitution of Kenya 2010 to ensure that the due process is followed and fairness is observed while administering justice.

3. The application was not opposed. The respondents were duly served but they did not put in any responses. The applicants further filed submissions dated 6/12/2021.

4. I have duly considered the application and the written submissions. The sole issue for determination is whether this suit should be transferred from Senior Principal Magistrate’s Rongo to Migori Chief Magistrate’s court.

5. The applicants’ contention is that they were acquitted by the Rongo Court in Criminal Case No. 178 of 2017, R vs Casmiel Agoro & 2 Others. Thereafter, they filed Civil Suit No. 14 of 2019 claiming damages for malicious prosecution. It is their further contention that the Rongo Court cannot hear their Civil case as it is the same court which heard the Criminal case.

6. Section 18 of the Civil Procedure Act gives this court powers to transfer suits. However, I am at pains to understand the applicants’ reasons on why they want their suit transferred. The application have not demonstrated that the court which they seek an order of transfer the suit from has no jurisdiction. The application have also not demonstrated any real, imagined or perceived biasness on the part of the Judicial Officer who heard the criminal case. Even in the circumstances where there was a perception that the Judicial officer will be biased; the proper way to go about it, is filing an application before the concerned Judicial Officer seeking their recusal.

7. The applicant has also stated that Court 2 is on transfer and there has been no replacement. The position currently is that there are two Magistrates serving the Rongo Law Courts station. There is a Magistrate in court 2 who can hear this case if at all they are not comfortable with the Magistrate who heard the criminal matter to hear their matter.

8. I do find no merits in the instant application. It is hereby dismissed with no orders as to costs since the respondents did not participate in these proceedings.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 3RD DAY OF OCTOBER 2022R. WENDOHJUDGERuling delivered in the presence of;Mr. Ochieng holding brief for Obach for the ApplicantsNo appearance for the RespondentsNyauke Court Assistant