ANDREW ACHOKI ONCHIRI v KENINDIA ASSURANCE CO. LTD [2004] KEHC 48 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT KISUMU

MISC CIV APPLI 121 OF 2004

ANDREW ACHOKI ONCHIRI ..............................................  APPLICANT

VERSUS

VERSUSKENINDIA ASSURANCE CO.LTD............... RESPONDENT

RULING

The application herein is seeking anorder:

b)       Nairobi Senior Resident Magistrate's Court Civil Suit No. 3158/2004 be transferred to Kisumu Chief Magistrate's Court for hearing and determination.

It was the submission of Mr. Onsongo Advocate that the cause of action relates to a contract of Insurance entered into by the parties within Kisumu. He further stated the defendant resides in Kisumu and there is no evidence that the respondents would suffer any prejudice if the orders aregranted. He referredme to clause 13 of the saidcontract which states:"Anydispute arisingout of or under or in connection with this policy if triabal by a Court of Law shall be tried and determined by the Court having jurisdiction over the place where this policy has been issued and according to the laws (including procedural and limitation laws)."

The respondents filed grounds of objection wherein they stated that the application lacks merit and is anabuse ofthe Court process. Further Mr. Nganga attacked the affidavit in support of the application, in that it was not signed by a Commissioner.

My task was straight forward and the issue is whether to allow the transferof the suit from Nairobi to Kisumu for hearing and determination. Ordinarily suits must be filed where the cause of action arose unlessthey arecompeling reasonsto do so. It isalleged that the Contract which is the subject of the dispute was concluded in Kisumu and above all there is a clause which restricted the parties freedom of filing suit outside the jurisdiction of Kisumu, where the cause ofaction arose and where the defendant/applicant resides.

Section 18 (1) (b) of Civil Procedure Act States:

"(1)  Onthe application of any of the parties and after notice to the parties and after hearingsuch of them asdesire to be heard or if its own motion without such notice, the High Courtmay at any stage."

(b)   Withdraw any suit or other any suit or other    proceeding pending in any Court subordinate toit and thereafter:(i)      Try or dispose of the same or

(ii)     Transferthe same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same."

The above Section gives the High Court unfettered powers to transferany suit from one Subordinate Court to another Subordinate Court which has jurisdiction to hear and determine the matters in dispute, however the issues to be considered arethat:

1)   The cause of action must have arisen at the place where the suit is being transferred to,

2)         That the defendant ordinarily resides or carries business at the place where the suit is beingtransferred.

3)         That no prejudice would be suffered by the parties as a result of the intended transfer.

4)         There must be evidence/material that the cause of action actually arose at the place where the suit is being transferred to.

The issue between the parties herein is analleged contract which was concluded within Kisumu, however it is not enough to just make certain allegation that the contract took place inKisumu but there must be ample evidencethat actually and without any doubt the contract exists and the same was concluded within Kisumu. It is the contention of the applicant that the contract giving rise to the suit filed at Nairobi was entered, executed and Signed at Kisumu, therefore the suit ought to have been filed inKisumu which is theCourt of first jurisdiction, unless they arecompelling reasonsto militate against such filing. According to the applicant clause 13 of policy No. 113/070/11/03055/2002/12,in the event a dispute arose the Court having jurisdiction isthe Court situated at the place where the policy wasissued and executed and hence the contract was issued and executed inKisumu. What was attached asevidence of the contract is astandard form in the name of Private Car InsurancePolicy, whichshows the policy number stated above. It does not have the names ofthe plaintiff anddefendant. Further there is nomaterial to show that it refersto the matter indispute between the parties in Nairobi.  Apart from the names of the parties missing, there is no where to show that it was actually signed and executed by the parties herein.

According to the plaint, the plaintiff 'sseeking specific performance of a contract involving motor vehicle registration number KAN 431 R. The plaintiff was the insurer of the said motor vehicle and the said motor vehicle was stolen sometimes inSeptember 2002. It is alleged that the applicant was the owner of the said and as a result ofthat theft he was compensated, however he refused to surrenderdocuments to enable the plaintiff to assume ownership of the said motor vehicle In paragraph 3 of the plaint it is alleged:

"At all material times relevant to this suit the plaintiff was the insurer of motor vehicle registration No. KAN 431 R and the defendant the insured thereof."

While in paragraph 4 of the plaint:

"Onor about 26th September 2002 the defendant reported theft of motor vehicle registration number KAN431 R to the plaintiff for purposes of compensation thereof."

It is alleged in the plaint that the defendant/applicant was compensated sometimes in December 2002 but the vehicle was subsequently recovered. Andthe plaintiff sold the motor vehicle to a 3rd party, therefore needs the defendant to transfer oravail the remaining documents to affect the actual transfer of ownership, which the defendant disputes.

According to paragraph 2 of the defence the applicants states ashereunder:

2.    "The defendant deniesparagraphs 3 and 4 of the plaint and states that he has never had any business intercourse with the plaintiff as regards a motor vehicle registration Number KAN 431 R as alleged or at all and the plaintiff shall apply to strike out this suit and pray for costs."

Further in paragraph 3 of the defence,the applicant states:

"The defendant states that he isa total strangerto any claim, statement or allegation relating to motor vehicle registration Number KAN 431 R and accordingly all the plaintiff's claim set out in paragraphs 5, 6, 7, 8, 9 and 10 are denied and the plaintiff put to strict proof thereof."

The above denial reflects the applicant's reply to the plaintiff's allegation contained in the plaint. However in paragraph 5 of the defence, the applicant introduces the provisions of the private car insurance policy, which he now seeks to use to transfer the suit from Nairobi to Kisumu Chief Magistrate's Court. Faced with the above peculiar circumstances do I have the jurisdiction to transfer the suit as was urged by the applicant? The matter is   stillpending beforethe lower Court and to discuss the issue would prejudice the matter between the parties herein. The party wishing to transferthe suit must establish evidence that infact the contract exists and Indeedit was enteredinto inKisumu. The Court cannot entertain allegations not backed by evidence,that the contractwas entered inKisumu. The applicanthas denied the existence of any relationship with the respondent, while he seeks to benefit from a contract which does not have the names of the parties. And above all there is no evidencethat it was signed by the parties. A party cannot have two ways, that is you cannot deny the existence ofa relationship while at the same time wanting to benefit from an alleged contract.

Now having given this matter my utmost consideration, it ismy judgment that there is nomaterial to enable me to exercisemy powers in favour of the applicant.  There is no evidencebefore me to show that the cause of action arose in Kisumu andfurther there isno evidence that the alleged contract wasconcluded and executed in Kisumu to warrant me to transfer the suit,thereforeit is my judgment that the application has no merit and the same is dismissed with costs to the respondent.

Dated and Delivered and Signed at Kisumu. This 14th day of June 2004.

MOHAMMED WARSAME AG.JUDGE

Ruling Delivered in the Presence of:

Mr. Onsongo for the applicant. No Appearance for the respondent.