LEWIS NYAKUNDI vs UNITED TOURING CO. (K) LTD. [2004] KEHC 2385 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

MISC. CIVIL SUIT NO. 86 OF 2004

LEWIS NYAKUNDI ……………… …………………....DEFENDANT/APPLICANT

VERSUS

UNITED TOURING CO. (K) LTD. ……………………PLAINTIFF/RESPONDENT

RULING

By Notice of Motion dated 7-2-2004 the Applicant seeks order for the transfer of Civil suit KILIFI RMCC No. 136/2003 L. Nyakundi –vs- Mitchell Cotts Freight (K) Ltd. now filed in Kilifi surbodinate court to Mombasa court Resident Magistrate’s Court.

The grounds on which the application is made are disclosed in the supporting affidavit mainly that t he suit was filed in Kilifi being mistake of the advocate’s clerk and that although Kilifi court has jurisdiction it would be convenient to have the suit transferred to Mombasa. The application is opposed by the defendant who has filed grounds of opposition stating that no suit can be transferred unless the first court had jurisdiction in the first instance and further the application does not lie under the inherent jurisdiction of the court. The defendant has also filed a Replying Affidavit denying jurisdiction fo the Kilifi court on the ground that it is claimed in the plaint that the cause of action across in Mombasa and the Plaintiff resides in Mombasa. The authority of Kaganyi –vs- Musiramo Sr Udo Udoma Chief Justice of Uganda held that Section 18 of the Civil Procedure Act gives a general power of transfer of all suits at any stages of proceedings even by court on its own motion without application of any party and that an order can be made only if the suit has in the first place been instituted in a court with jurisdiction to try it.

The present case arises out of employment contract and under the Employment Act (226) Section 40 all disputes between employer and employee are referred to a magistrate empowered to hold magistrate’s court of the first or second class.

“the magistrate shall have jurisdiction (notwithstanding anything contained in any written law respecting the jurisdiction of th e magistrate to the contrary”

I am of the view that the Kilifi magistrate’s court had jurisdiction to try the present case.

I am also o the view that the High Court has power to order transfer of any case as provided under Section 18 Civil Procedure Act. The power is discretionary.

Referring again to the judgement of Sr Udo Udoma in the above cited case

“the principle matters to be taken into consideration are a balance of convenience, questions of expense, interest of justice and possibilities of undue hardship”.

In the present case it appears all parties reside in Mombasa and it is therefore convenient to have the suit tried here in Resident Magistrate’s Court. The reason why the suit was filed in Kilifi has been explained and has not been challenged. It will be much cheaper also to avoid having to travel to Kilifi court for the trial.

For these reasons, I am convinced that it will be in the interest of justice to allow the application which I hereby do and order the transfer of suit as prayed.

Costs shall be in the cause.

Dated 19th April, 2004.

J. KHAMINWA

JUDGE

Mr. Adoch

No appearance for Respondents.