Owino & another v Orao & another [2022] KEHC 13371 (KLR)

Owino & another v Orao & another (Civil Suit E001 of 2021) [2022] KEHC 13371 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13371 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Suit E001 of 2021

RPV Wendoh, J

October 3, 2022

Between

Philip Owino

1st Applicant

Christopher Agola

2nd Applicant

and

Moris Ochola Orao

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The applicants filed the instant notice of motion dated 7/6/2021 and filed in court on 14/6/2020 through the firm of H Obach & Co Advocates. They seek the following orders; the following orders:-a.Spent.b.That this court be pleased to order the transfer of the Civil Suit No 15 of 2019 at the Principal Magistrate’s Court in Rongo to Migori Law Court.c.That costs be in the cause.

2. The application is premised on the grounds on its face and the supporting affidavit of Philip Owino one of the applicants. He deponed as follows:-i.That the substratum of the application is that he suit was instituted upon a successful prosecution of a criminal matter Criminal Case No 175 of 2017, R vs Philip Owino & another.ii.The accused persons were acquitted by the court under section 215 of the Criminal Procedure Act.iii.That this matter was handled to its conclusion by the Principal Magistrate’s Court at Rongo.iv.That the plaintiffs in this matter erroneously filed a malicious prosecution suit in the Principal Magistrate’s Court in Rongo.v.That the court sitting in Rongo cannot handle this matter since it handled the criminal matter.vi.There will be no bias on the part of the Magistrate’s Court in Migori in trying this matter.vii.That the right to fair hearing is a constitutional right that is enshrined in the Constitutionof Kenya2010 to ensure that the due process is followed and fairness is observed while administering justice.

3. The application was not opposed. The respondents were duly served but they did not file any response. The applicants further filed submissions dated 6/12/2021.

4. I have duly considered the application and the written submissions. The sole issue for determination is this suit should be transferred from Senior Principal Magistrate’s at Rongo to Migori Chief Magistrate’s Court.

5. The applicants’ contention is that they were acquitted by the Rongo Court in Criminal Case No 175 of 2017 R vs Philip Owino & another. Thereafter, they filed Civil Suit No 15 of 2019 claiming damages for malicious prosecution. It is their further contention that the Rongo Court cannot hear their civil case as it is the same court which heard the criminal case.

6. Section 18 of the Civil Procedure Act gives this court powers to transfer suits. However, I am at pains to understand the applicants’ reasons on why they want their suit transferred. They have not demonstrated that the court which they seek an order of transfer the suit from has no jurisdiction. They have also not demonstrated any real, imagined or perceived bias on the part of the judicial officer. Even in the circumstances where there was a perception that the judicial officer will be biased; the proper way to go about it, is filing an application before the concerned judicial officer seeking their recusal.

7. The applicant deponed that court 2 at Rongo is on transfer and there has been no replacement but that is not the position because another magistrate was posted to Rongo and has been there for over one year. Even if the magistrate who heard the criminal case cannot hear this matter, the other court has jurisdiction.

8. I find no merits in the instant application. It is hereby dismissed with no orders as to costs since the respondents did not participate in these proceedings.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 3RD DAY OF OCTOBER 2022R. WENDOHJUDGERuling delivered in the presence of;Mr. Ochieng holding brief for Obach for the ApplicantsNo appearance for the RespondentsNyauke Court Assistant