Betty Nyamusi Machora v Betty Nyanduko Makori [2018] KEHC 5174 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

MISC. CIVIL APPEAL NO. 58 OF 2015

CORAM: D.S. MAJANJA J.

BETWEEN

BETTY NYAMUSI MACHORA.........................................................APPELLANT

AND

BETTY NYANDUKO MAKORI.....................................................RESPONDENT

(Being an appeal from the Ruling and Order of Hon. S. N. Makila, RM dated 22nd September 2014 at the Chief Magistrates Court at Kisii in Civil Case No.76 of 2014)

JUDGMENT

1. After the appellant was admitted to prosecute the matter as a pauper, Karanjah J., allowed the appellant’s application to file the appeal out of time and did order, on 31st March 2016, that the appeal be deemed as duly filed and served.

2. This appeal is against an order of the trial court dismissing the suit for want of jurisdiction. The reason being that the accident, subject of the suit, occurred in Kilgoris within the jurisdiction of the Magistrates Court at Kilgoris, as such the Magistrates Court at Kisii did not have jurisdiction in light of section 15 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) (“the CPA”).

3. Although the appellant has raised several issues for determination, the only issue sufficient to dispose of this appeal is whether the trial magistrate erred in dismissing the suit for want of jurisdiction in light of section 15 of the CPA,which provides that every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action arose.

4. It is not in dispute that the accident that is the subject of the suit before the subordinate court took place within Kilgoris within Transmara Sub-County and the trial magistrate was right in holding that the proper place to sue was in Kilgoris, but it does not follow that she could dismiss the suit for want of jurisdiction. She did not consider the provisions of section 3(2) of the Magistrates Courts Act, Chapter 10 (now repealed)(“the MCA”) which stipulated that, “The Resident Magistrate’s Court shall have jurisdiction throughout Kenya”.

5. Without belabouring the issue, the preponderance of authority on the issue is that the Resident Magistrates Court had territorial jurisdiction throughout Kenya hence section 15 of the CPA applied to the District Magistrates Court which had limited territorial jurisdiction under the MCA. I would do no better than adopting the dicta of Sergon J., in John Maraka Wekesa v Patrick Wafula Otunga BGM HCCA No. 50 of 2001 [2005] eKLR where he stated as follows;

I do not think Section 15 of the Civil Procedure Act was meant to apply to Resident Magistrates Court.  Most probably it was intended to apply to District Magistrates’ Courts defined under Section 6 of the Magistrate’s Courts Act.  Even if it were to be said that the provision of Section 15 were to apply to the Resident Magistrate’s Court, the position in my view will not change because the law is well settled that where there is a conflict of between two statutes, the provision in the latter statute would be deemed to have amended the earlier provision.  The Magistrates Courts Act was enacted later than the Civil Procedure Act. It is therefore evidently clear that the Webuye Court had jurisdiction to entertain the suit.  The learned Senior Resident Magistrate therefore misapprehended the point when she held that she had no jurisdiction to hear the matter. For the above reasons, the appeal must succeed.

6. In my view, section 15 of the CPA provides for the convenient forum of instituting a suit. It does not divest the magistrates court of jurisdiction, hence a defendant who is dissatisfied with the place where the suit has been filed is entitled to invoke section 18 of the CPA and apply to the High Court to transfer the suit to the appropriate forum. This position still obtains following repeal of the MCA. The Magistrates Court Act, 2015 provides for the jurisdiction of the Magistrates Court on the basis of subject matter and/or its value; it does not limit the territorial jurisdiction of the Magistrates Court.

7. In conclusion, I find and hold that the trial magistrate erred in dismissing the suit. I allow the appeal and substitute the order dismissing the appeal with an order dismissing the respondent’s preliminary objection. I make no order as to costs for this appeal.

8. I direct that the suit proceeds for hearing in the normal way at the Kisii Magistrates Court.

DATEDandDELIVEREDatKISIIthis26th day of July 2018.

D.S. MAJANJA

JUDGE

Appellant in person.

Ms Kerubo instructed by Omwenga and Company Advocates for the respondent.