Tamani Jua Tao Resort Ltd v Philip Komone Mwanti [2017] KEHC 486 (KLR) | Transfer Of Suits | Esheria

Tamani Jua Tao Resort Ltd v Philip Komone Mwanti [2017] KEHC 486 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

MISC. CIVIL  CASE NO. 29 OF 2016

TAMANI JUA TAO RESORT LTD........................APPLICANT

VERSUS

PHILIP KOMONE MWANTI............................RESPONDENT

RULING

The application dated 24. 5.2016 seeks the following orders:-

1. That this Honourable Court be pleased to transfer Nakuru CMCC No.526 of 2016 from the Chief Magistrate’s Court at Nakuru to Malindi Chief Magistrate’s Court to try and/or dispose of the same.

The application is supported by the affidavit of Kelvin Mbura Advocate Sworn on 24th May, 2016 and his supplementary affidavit sworn on 27th/9/2017.  The respondent filed a replying affidavit sworn by Kisilah Daniel Gor on 7th June 2016.  Parties agreed to determine the application by way of written submissions.

It is indicated in the application that the defendant in the suit carries on business in Malindi and therefore the right place to sue is Malindi.  The cause of action is believed to have arisen in Malindi.  The applicant will be highly prejudiced if the Suit is heard in Nakuru.  This line of reasoning is reiterated in the affidavit of Mr. Mbura as well as in the applicant’s submissions. Counsel for the applicant submit that sections 14 and 15 of the Civil Procedure Act provides for the choice where a suit is to be instituted.  That choice should not be used to prejudice the defendant so that it will be hard for the defendant to defend the suit.

On his part, the respondent maintains that sections 14 and 15 of the Civil Procedure Code should be read together.  The  suit in Nakuru is for enchroachment and  use of his private mobile phone number by the applicant.  The plaintiff had an option of filing the suit either in Nakuru or Malindi. The cause of action did not occur in Malindi.  The nuisance, inconvenience, Insults and humiliating comments suffered by the plaintiff occurred at the plaintiff’s domicile in Nakuru.  Therefore the court  in Nakuru is best placed to hear the suit.  The law allows the suit to be filed in Nakuru.

I have read the  submissions of both counsels as well as the  authorities relied upon.  The Plaint dated 22. 4.2016 indicate that the Plaintiff/Respondent in around June 2013 started receiving vexetious calls from travelling agencies and private individuals seeking services which the plaintiff did not offer.  The plaintiff visited safaricom company offices and it was confirmed that he is the sole registered proprietor of mobile phone number 0722******.  He later found out that the defendant had listed the mobile phone number as their contact on its website.  That is the cause of action.

From the above pleadings, it is clear that the cause of action did not take place in Malindi.  The Plaintiff was receiving the calls in Nakuru.  Even if the defendant and its website is in Malindi, it is the vexations calls which triggered the filing of the suit.

Section 14 of the Civil Procedure Act states as follows:

Where a suit is for compensation of wrong done to the person or to  moveable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries no business, or personally works for gain, within the local limits of the  jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of those courts.

Illustration (a) A residing in Mombasa beats B in Nairobi.  B may sue either in Mombasa or Nairobi.

Illustration – (b) A residing in Mombasa publishes at Nairobi statements defamatory of B.  B may sue A either in Mombasa or Nairobi.

I do find that the suit seeks damages for enchroachment of privacy and/property.  The enchroachment was done in Nakuru where the plaintiff resides.  The plaintiff had the option of filing the suit in either Nakuru or Malindi.  It is therefore proper for the suit to have been filed in Nakuru.  Having been inconvenienced by the alledged vexetious calls, it would be imprudent for the plaintiff to file the suit in Malindi and travel all the way to Malindi to prove his case.

In the end, I do find that the application dated 24th May, 2016 lacks merit and is hereby dismissed.  Costs shall follow the outcome of the main suit.

Dated and Signed at  Marsabit this …day of September 2017

SAID CHITEMBWE

JUDGE

Dated, Signed and Delivered at Malindi this 5th day of October, 2017

WELDON KORIR

JUDGE