Allan Fwamba Malilo v Tai Construction Co Ltd [2015] KEHC 4493 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICATION CASE NO. 39 OF 2014

ALLAN FWAMBA MALILO . …..................…..................... APPELLANT

VERSUS

TAI CONSTRUCTION CO.  LTD..................................... RESPONDENT

RULING

1.      Before court is an application dated 9th April  2014 seeking to  transfer Bungoma CMCC no. 138 of 2010 to Kakamega  Law Court for hearing  and determination on the grounds that the Bungoma Chief Magistrate's Court has no  territorial jurisdiction as the action arose in Kakamega.  The application was supported by the affidavit of Allan Fwamba Malilo the appellant.

2.      The facts of the  matter are that by  a plaint dated 19th February 2010  the  appellant filed  suit in  Bungoma Chief Magistrate's Court against  Tai Construction Company Limited ,the defendant therein, claiming  damages arising from an accident along Kakamega road.  A defence was filed which inter  alia took issue with the court's jurisdiction.

3.      At the hearing of the application only the Appellant’s counsel appeared. However an affidavit of service was filed indicating that the   application herein was duly served upon the respondent.

4.      The only issue for determination herein is whether or not this  suit is transferable?  In arguing for the orders being sought  counsel   for the applicant gave the sole reason for the transfer  as being lack of territorial jurisdiction by the Chief Magistrate's  Court, Bungoma as the cause of action arose in Kakamega.

5.      There are several authorities on this matter and the same is by now settled law.  The High Court no doubt has wide powers to  transfer suits to courts that   have territorial and pecuniary jurisdiction under Section 18 of the Civil Procedure Act.  Notably if the case to be transferred is competent in the first place.

Ringera J (as he then was) addressed an issue a similar issue to the one before this court. In the case of Omwoyo  Vs. AfricanHighlands and Produce Co. Ltd. [2002] l at 199where he stated;

“That being the case, the sole issue for determination is whether this  court has jurisdiction to transfer a suit from a court which is  seized  if it has  no jurisdiction to determine it to a court   vested           with jurisdiction.”

“The Principle of Law to be gleaned …..... is that the High  Court cannot  exercise its  discretion to transfer a suit   from one court to another if the suit is filed in the first place in a court which                does not have pecuniary and/or territorial  jurisdiction to try it.”

6.      Guided accordingly I am of the view that there is no matter to be transferred as the suit before the Chief Magistrate's Court, Bungoma was   a nullity abnitio.  The court had no territorial jurisdiction.

In the circumstances the application is dismissed.  I make no  order as to costs.

Dated at Bungoma this 28th day of May 2015.

ALI-ARONI

JUDGE.