E S V V I AGROFORESTRY PROJECT [2009] KEHC 2849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

MISCELLANEOUS CIVIL APPLICATION 20 OF 2009

E S:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

V I AGROFORESTRY PROJECT:::::::::::::::::::RESPONDENT

R U L I N G

By an application dated 24th March 2009, pursuant to the provisions of section 18 of the Civil Procedure Act, the applicant seeks orders:

(a) That this honourable court be pleased to transfer Kitale CMCC No. 420/2007 from Kitale Law Courts to Webuye Law Courts for hearing and disposal.

(b) That the costs of this application be provided for:

The application is based on the grounds:

1That the mother and next friend of the applicant who is the plaintiff in Kitale CMCC No. 420/2007 works as a typist at Kitale Law  Courts.

2 That Kitale CMCC No. 420/2007 has come for hearing on three occasions i.e. on 18/1/2007, 11/8/2008 and 22/9/2008 but each time the magistrates keep on disqualifying themselves from hearing the matter on the ground that they personally know and work with the applicant’s mother at Kitale Law Courts.

3That the matter is taking long and it is in the interest of justice that it is transferred to another court for hearing and disposal.

4. That the respondent will not be prejudiced in any manner if this application is granted.

The application is supported by the annexed affidavit of E S sworn on the 24th day of March 2009.

On behalf of the applicant I was urged that the applicant is her son.  She (applicant) has filed Kitale CMCC No. 420/2007 using her name as mother and next friend. That she works at Kitale Law Courts as a copy typist.

That the case has come up for hearing on three occasions i.e. 18th January 2007, 11th August 2008 and 22nd  September 2008 but each time the trial magistrates seized of the matter have been disqualifying themselves for the reason that I am one of the employees working under them.

For that reason she prayed that the case should be transferred to another court of competent jurisdiction for hearing and disposal. That the defence counsel has no problem with the transfer application as per copy of the letter annexed hereto and marked as Exhibit “E31”.

I have carefully analysed the application. I have also taken into consideration the fact that the defence counsel has no objection to the transfer as evidenced by exhibit “E31”.

Section 18 of the Civil Procedure Act Provides thus:

“ On the application of any of the parties

and after notice to the parties and after

hearing such of then as desire to be heard,

or of its own motion without such notice,

the High Court may at any stage –

(a)transfer any suit, appeal or other

proceedings pending before it for

trial or disposal to any court subordinate

to it and competent to try or dispose of

the same; or

(b)withdraw any suit or other proceedin

pending in any court subordinate to it,

and thereafter –

(i)   try or dispose of the same; or

(II)   transfer the same for trial or disposal

to any court subordinate to it and

competent to  try or dispose of the same;

or

(iii)retransfer the same for trial or disposal

to the court from which it was withdrawn.

(2)Where any suit or proceeding has been

transferred or withdrawn as aforesaid, the

court which thereafter tries such suit may,

subject to any special directions in the case

of an order of transfer, either retry it or

proceed from the point at which it was

transferred or withdrawn”.

In the disclosed circumstances of this case, I see no good reason why the application should be disallowed.

Accordingly, in the interest of justice and in consonance with section 18 of the Civil Procedure Act, I transfer the case to the Kapenguria Principal Magistrate’s court for hearing and final disposal.

Dated and delivered at Kitale Law Courts this 20 day of JUNE 2009.

N.R.O. Ombija

JUDGE

Ms Fuchaka for Okile for plaintiff