Ndirangu v Savings & Loan (K) Limited [2022] KEHC 11866 (KLR)

Ndirangu v Savings & Loan (K) Limited (Miscellaneous Civil Application 132 of 2005) [2022] KEHC 11866 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11866 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Civil Application 132 of 2005

FN Muchemi, J

May 5, 2022

Between

Job Muiga Ndirangu

Applicant

and

Savings & Loan (K) Limited

Respondent

Ruling

1. The application for determination dated January 20, 2022 seeks for orders that warrants of arrest be issued against the defendant because they unlawfully disposed the applicant’s land L R no Block 1/4 Thika under account no xxxx as opposed to the true account no 26870034.

2. The application is unopposed.

3. I have perused the file and noted that there are three rulings touching on the jurisdiction of this court. The applicant herein filed a suit in the Nyeri Chief Magistrate court CMCC no 384 of 1997 on September 1, 1997. A preliminary objection was raised on the issue of jurisdiction whereas the court held on February 27, 2001 that since the suit land plot no Thika Municipality Block 1/4 is situated in Thika town, the court had no territorial jurisdiction. The chief magistrate in his own motion directed that the file be placed before the High Court Nyeri for further directions.

4. On February 27, 2002, the file was placed before the High Court Nyeri where Justice J K Mitey held that since the cause of action arose in Thika the suit CMCC no 384 of 1997 be transferred to the Chief Magistrate Court Milimani Nairobi. The matter was then transferred to Milimani Commercial Courts and filed as CMCC no 2219 of 2002. The applicant was informed accordingly vide the chief magistrate’s letter dated March 6, 2002 and by the chief court administrator. The applicant in 2005 however filed an application seeking for the matter CMCC no 2219 of 2002 Milimani Commercial Court, Nairobi to be transferred to Nyeri High Court or hearing and determination of the matter. The court on April 27, 2007 held that the applicant’s application was incompetent in view of the delay in bringing the application since the transfer orders were made on February 27, 2002.

5. It is imperative to note that the suit between the parties is Milimani Commercial Court CMCC no 2219 of 2002 and that any party involved in the said suit can only pursue their concerns in the said file. This miscellaneous file was therefore erroneously opened in this court at Nyeri for it deals with the same subject as the original file.

6. The record shows that the applicant in his application dated November 17, 2005 had sought orders for transfer of the Milimani CMCC no 2219 of 2002 to Nyeri. The application was heard by Kasango J who struck out the motion on grounds that it was incompetent since the file had been transferred on February 27, 2002 and the orders therein were still valid. Despite the said order, the applicant has continued to file applications herein in total defiance of the orders of Kasango J.

7. In view of the background information, I find this application incompetent for it ought to have been filed in the file at Milimani Commercial Court.

8. Consequently, I hereby strike out the said application for being incompetent, vexatious and an abuse of the due process of the court.

9. The respondent was served but did not file any replying affidavit.

10. The applicant will meet his own costs.

11. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 5TH DAY OF MAY, 2022. F MUCHEMIJUDGERULING DELIVERED THROUGH VIDEOLINK THIS 5TH DAY OF MAY, 2022.