Allan Fwamba Malilo v Tai Construction Company Limited [2016] KECA 483 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  MUSINGA, GATEMBU & MURGOR, JJ.A.)

CIVIL APPEAL NO. 72 OF 2015

BETWEEN

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

AND

TAI CONSTRUCTION COMPANY LIMITED ………RESPONDENT

(An appeal from the Ruling of the High Court of Kenya at Bungoma (Ali-Aroni, J.) delivered on 1st July, 2015 in MISC. APPL. NO. 191 OF 2012)

JUDGMENT OF THE COURT

This appeal arises from the ruling of Ali-Aroni, J.delivered on 1st July, 2015 declining to order transfer of Bungoma CMCC No. 138of2010 to Kakamega Law Courts for trial and disposal.

The applicant, who was residing in Bungoma, was injured in a road traffic accident that occurred near Kakamega Provincial General  Hospital within Kakamega town.  The respondent company, the owner of the motor vehicle that allegedly caused the accident, is based at  Eldoret.

In the statement of defence, the respondent had denied that the Chief Magistrate’s Court at Bungoma had jurisdiction to hear and determine  the suit.

In the affidavit sworn in support of the application for transfer of the  suit, the applicant conceded that the suit had been filed in a court that lacked territorial jurisdiction to hear and determine it, that is, Bungoma Chief Magistrate’s Court.

In her ruling, the learned judge, citing OMWOYO VS AFRICAN  HIGHLANDS & PRODUCE COMPANY LIMITED [2002] 1 KLR 199, held that the High Court had no jurisdiction to transfer a suit from a court which has no jurisdiction to try it to any other court.  The appellant was aggrieved by that finding and preferred an appeal to this Court.

During the hearing of the appeal, Mr. Murunga, learned counsel for   the appellant while conceding that the suit was wrongly filed in Bungoma Chief Magistrate’s Court, argued that the High Court had power to order transfer of the suit to Kakamega Law Courts.  He submitted that the jurisprudence in OMWOYO VS AFRICAN HIGHLANDS & PRODUCE COMPANY LIMITED (Supra) was no longer good law, considering that Article 159 (2)of theConstitutionofKenya, 2010 requires that justice be administered without undue regard to procedural technicalities.

Mr. Maritim, learned counsel for the respondent, submitted that the issue of territorial jurisdiction as stipulated under Section 14of theCivil Procedure Act was not a procedural technicality that could have  been overlooked by the High Court in its consideration of the application for transfer of the suit.  In his view, the appellant, having realized that he had filed the suit before a court that lacked territorial jurisdiction, ought to have withdrawn the suit and filed it before the appropriate court.

We have considered the appeal before us and the brief submissions by counsel.  Section 14of theCivil Procedure Act states as follows:

“14. Where a suit is for compensation for wrong done to the person or to movable property, if  the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or  personally works for gain, within the local limits of the jurisdiction of another court, the  suit may be instituted at the option of the  plaintiff in either of those courts.”

From the foregoing, it is clear that the suit ought to have been filed either in Eldoret where the respondent company is based or Kakamega where the accident occurred.  The judge was right in holding that a suit filed in a court without jurisdiction cannot be  transferred to another court.

We do not agree with Mr. Murunga that the issue of territorial jurisdiction of a court can be treated as a procedural technicality that it ought to be discarded by our courts.  The Civil Procedure Act contains elaborate details regarding the place of suing.  These  provisions should not be disregarded, otherwise untold hardship and  injustice may be occasioned to litigants by way of suits being filed indiscriminately before any court.

We find this appeal lacking in merit and consequently dismiss it with   costs to the respondent.

Dated and delivered at Kisumu this 27th day of May, 2016.

D. K. MUSINGA

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

JUDGE OF APPEAL

A.K. MURGOR

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR