Sofia Nasiche Wesonga v Juma Kulundu Mulisya [2014] KEHC 6229 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA .

MISC. APP. NO. 149 OF 2013.

SOFIA NASICHE WESONGA ::::::::::::::::::::::::::::::::::  APPLICANT

VERSUS

JUMA KULUNDU MULISYA ::::::::::::::::::::::::::::::::::::  RESPONDENT.

R U L I N G.

JUMA KULUNDU  MULUSYA, hereinafter referred to as the Respondent  through his advocates, Marisio Luchivya & co. advocates, filed  a notice of preliminary  objection dated 6th September, 2013 to the Applicant’s  notice of motion dated 5th November, 2012 and filed on 21st August, 2013. He seeks to have  the application herein  and Busia CMCC. No. 141 of 2012  struck out with costs for the following reasons;-

That  the suit land, South Wanga/Lureko/449, is situated in Mumias District, in Kakamega County and therefore under section 13 of C.P.A, the suit ought  to have been filed in court in that county.

That both the parties  in Busia CMCC. No. 141 of 2012  resides in Mumias District in Kakamega County and therefore  under section 15  such a suit be filed in the courts in that County.

That both this court and the subordinate court in Busia  have no jurisdiction to hear the suit and the same should be struck out.

The Applicant, Sofia  Nasiche Wesonga, through  her advocate Ashioya  & co. Advocates opposed the preliminary objection and filed grounds of opposition dated 7th October, 2013 setting out  the following reasons;-

That the preliminary objection lacks any backing in law as  the High court  of Kenya has unlimited jurisdiction.

That the preliminary objection  is made in bad faith, is  oppressive and meant to scuttle Applicant’s rights to peaceful and quiet  occupation of the land.

That the preliminary objection lacks  in merit and should be dismissed with costs.

During  the hearing,  the Applicant and her advocate did not attend court even though the hearing  date had been agreed by consent.  The court allowed the Respondent’s  counsel to prosecute his preliminary objection.  The court having considered the Counsel’s  submissions in support of the preliminary objection find as follows;-

That the Respondent’s  contention that both parties in Busia CMCC. 141 of 2012 , who are also the same parties in this application, resides in Mumias District of Kakamega County has not been disputed by the Applicant.

That the Applicant has also not disputed the Respondent’s  contention that the  suit land, South Wanga/Lureko/449 is situated in Mumias District in Kakamega County.

That this  court is aware there is a subordinate court at Mumias town and a High Court  at Kakamega town both in Kakamega  County.  Therefore  in terms of sections 12 and 15 of the Civil Procedure  Act, the Lower court case should  have been filed at Mumias Law court.  It follows therefore the superior court under which Mumias Law Courts falls is Kakamega High Court  and that is where the current application should have been filed. The provisions of the Civil Procedure  Act  on the territorial  jurisdiction are meant to be obeyed  by all litigants including the Applicant herein.

That having found as above, the preliminary objection by the Respondent  is upheld and  the following orders issued;-

That Busia CMCC. NO. 141 of 2012 is hereby struck  out for being filed in a  in court  outside  the territorial  jurisdiction.

That the notice of motion filed herein and dated 5th November, 2012 is hereby struck out for  the same reason in (a) above.

The Applicant to pay the Respondent’s costs in Busia CMCC. No. 141 of 2012 and in this application.

The Applicant at liberty to initiate  his claim in the appropriate court subject to limitation of time as is usual.

It is so ordered.

S. M . KIBUNJA.

JUDGE.

DATED AND DELIVERED ON 24TH DAY OF MARCH, 2014.

IN THE PRESENCE OF;

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 24TH DAY OF MARCH, 2014.

IN THE PRESENCE OF;

JUDGE.