FELISTA W. NGENGE vs JOSEPH WAIHENYA & EPRAIM WAHOME [2004] KEHC 484 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISC. APP. NO. 193 OF 2003

FELISTA W. NGENGE…………………………….PLAINTIFF

VERSUS

JOSEPH WAIHENYA &

EPRAIM WAHOME………DEFENDANTS/RESPONDENTS

R U L I N G

The applicant seeks to have this court order that SRMCC no. 703/00 filed at Resident Magistrate’s court Machakos be transferred to Resident Magistrate’s court Murang’a for hearing and disposal. The application is brought under order L Rule 1 Civil Procedure Rule, section 15(a) & c, section 18(b) and section 3A Civil Procedure Act. He prays that costs be in the cause. The grounds upon which the application is brought are that the Resident Magistrate’s court Murang’a has pecuniary and territorial judiction in the matter, witnesses reside and work in Murang’a, the cause of action arose along Karatina Sagana road and falls within the local limits of the Resident Magistrate’s at Murang’a, and that the respondent will suffer no prejudice.

The application is supported by an affidavit sworn by the advocate for plaintiff Mr. Mutunga. The applicant in his Misc. Appl.193/03 is one Felista W. Ngenge. I however note that the affidavit in support of this application is in respect of one Beatrice Njeri Muriuki. This is the same affidavit that is filed in Misc. Appl. 192/03. It means that there is no affidavit in support for this application as the one in support is in respect of somebody else.

There are annextures to the application purportedly for the case to be transferred to Murang’a. The annextures are in respect of Kangundo SRMCC no. 451/99 and the plaintiff in those pleadings is Wanjiru Ngenge not Felista W. Ngenge as indicated in the application MISC. 193/03. This is not the same suit sought to be transferred to Murang’a court. As per the application the suit sought to be transferred to Murang’a court is SRMCC 703/00 Resident Magistrate’s courts Machakos.

There is therefore no affidavit or evidence in support of the application before court that a case is pending before Machakos Senior Principal’s Magistrate’s court no. 703/00 to be transferred to Murang’a court for trial. The question is whether the applicant has two files pending in two courts involving the same cause of action.

For the reasons given above the court is not able to even go to the merits of the application and the application is dismissed with the applicant bearing the costs.

Dated, read and delivered at Machakos this………………..day of……………..,2004.

R. WENDOH

JUDGE