Introduction
1. This Ruling is in respect of Notice of Motion Application dated 22nd May 2023 by the Applicant seeking the following orders; -
i. Spent;
ii. That this Honourable Court be pleased to withdraw Thika No. E472 OF 2021 which is pending before the Chief Magistrate’s Court and proceed to transfer the same for hearing and disposal at the Milimani Chief Magistrate’s Court
iii. That the costs of this application be in the cause
2. The application is expressed to have been brought under the provisions of Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B, 3A, and Section 18(1) (b) (i) of the Civil Procedure Act, Article 159 (2) and 162 (2) (a) of the Constitution.
3. The application is based on the grounds on the face of the application and is supported by the affidavit of Ronald Omondi Umija, the Applicant’s director, sworn on 22nd May 2023.
4. The main ground of the application is that according to the applicant, the cause of action in this matter arose at GA House Off Ngong Road Milimani area in Dagoretti North Sub-County, within Nairobi City County, and therefore the suit ought to have been instituted in Nairobi.
5. The Applicant further contends that there are other cases related to the same subject matter, and which are ongoing at Milimani Commercial Courts i.e., Milimani Criminal Case No. MCCR No. E108/2022 Republic v Ronald Omondi Umija and HCJRMISC No. E018/2022 Ronald Omondi Umija v State Law & DPP & 2 Others.
6. The application is opposed by the Respondent who filed its Grounds of Opposition dated 17th July 2023. According to the Respondent, the contract which is the substratum in Thika Chief Magistrate’s Court Civil Suit No. E472 OF 2021, was made and concluded in Thika, at the business premises of the Respondent.
7. The application was canvassed by way of written submissions. The Applicant’s submissions are dated 12th July 2023 whilst the Respondent’s submissions are dated 17th July 2023.
Applicant’s Applications
8. The Applicant submitted that the cause of action arose within GA House Off Ngong Road Milimani area in Dagoretti North Sub-County, within Nairobi City County. In support of this argument, the Applicant placed reliance on a charge sheet dated 31st January 2022 from Muthaiga Police Station in which one Ronald Omondi Umija, was on 31st January 2022 charged with the offense of obtaining by false pretenses contrary to Section 313 of the Penal Code.
9. The Applicant further submitted that, it has its registered business within Nairobi City County and all its witnesses are residents of Nairobi City County, and all the advocates representing the parties, have their offices within Nairobi. Therefore, the Applicant finds it weird and malicious for the Respondent to file a civil claim in Thika, within Kiambu County, instead of Nairobi.
10. According to the Applicant, there are two other related cases over the same subject matter i.e., Milimani Criminal Case No. MCCR No. E108/2022 Republic v Ronald Omondi Umija and HCJRMISC No. E018/2022 Ronald Omondi Umija v State Law & DPP & 2 Others, which are all in Nairobi.
11. The Applicant therefore urged this court to invoke its powers under Section 18 of the Civil Procedure Act and transfer the Thika Chief Magistrate’s Court Civil Suit No. E472 OF 2021 from Thika to Nairobi. The Applicant relied on the case of Bud & Blooms Ltd v Jonathan Balongo Okumu [2021] eKLR in support of its submissions.
The Respondent’s submissions
12. The Respondent maintained that the suit was instituted in the correct court. According to the Respondent. The Respondent submitted that the contract for the supply of three Krohne mass custody flow meters by the Applicant to the Respondent, and is the substratum in Thika Chief Magistrate’s Court Civil Suit No. E472 OF 2021.
13. The Respondent further submitted that the contract was made and concluded in Thika, at the business premises of the Respondent, and the subject contract was intended to be performed and concluded upon supply, delivery, and commissioning of the flow meters by the Applicant at the said Respondent’s business premises.
14. The Respondent therefore maintained that the Chief Magistrate Court at Thika has both pecuniary and territorial jurisdiction. In support of its arguments, the Respondent cited the decision of Ringera J (as he then was), in a decision in Mohamed Sitaban v George Mwangi Karoki CA No. 13/2002.
Analysis And Determination
15. I have considered the application, the affidavit filed in support thereof, the Grounds of Opposition filed by the Respondent, and the parties’ written submissions in support of their respective position, and in my view, the issue for determination in this application is;
Whether the Applicant’s application dated 22nd May 2023, seeking a transfer of suit is merited and should be allowed as prayed.
16. The place of institution of a suit is guided by among others, section 15 of the Civil Procedure Act which provides as follows; -
“15. Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain; or
(b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises
17. It is therefore clear that a suit may be instituted in a court within the local limits of whose jurisdiction a defendant resides, works, or carries on business. A suit may equally be instituted where the cause of action, whether partially or wholly, arises. See the decision in the case of Gogfrey Otieno Onyango (suing on behalf of Ronald Onyango) & 2 Others v Crispin Oduor Obudo & 8 other [2014] eKLR where the court held as follows; -
“The jurisdiction of filing a suit is not limited to where the Defendants domicile. The place where the cause of action arose is also a consideration as envisaged under section 15 of the Civil Procedure Act. It is not disputed that the 5th, 6th, and intended 7th, 8th, and 9th Defendants are all companies registered in the UK. However, what the Plaintiffs herein are seeking to enforce are agreements that were apparently entered into in the Country (Kenya). It is also not a necessity that a Plaintiff files a suit where the Defendant resides. As I have stated earlier, where the cause of action arose whether or not partly is also a consideration in determining the jurisdiction where to file the suit.”
18. From the pleadings and submissions filed, I note that the genesis of this dispute is a contract between the Applicant and the Respondent in which the Applicant was to sell and deliver to the Respondent Flow Meter at a price of Kenya Shillings Six Million and Ninety Thousand (Kshs. 6,090,000/-) only. It was pleaded by the Respondent in its plaint dated 25th August 2021 that despite payments being made by the Respondent under the contract, the Applicant failed and/or neglected to supply the flow meter.
19. It is apparent from the record that when the Applicant failed to supply the Flow Meter as per the agreement, the Respondent lodged a complaint with the Muthaiga Police Station, and the Respondent’s director was consequently charged on 31st January 2022 with the offence of obtaining money by false pretenses.
20. In note from the Applicant’s application that the main reasons advanced by the Applicant are two. One, that the Respondent has its registered office in Nairobi, and, two, that there are related criminal matters against the Applicant ongoing in Nairobi.
21. The Respondent on the other hand submitted that the supply and installation of the flow meters was to be done at the Respondent’s place of business, which is based in Thika.
22. Taking into account the facts of this case as presented by the parties and taking into account the provisions of section 15 of the Civil Procedure Act, the Plaintiff was perfectly entitled to commence the suit at Thika Chief Magistrate’s Court. The mere fact that the Applicant has its registered office in Nairobi is not reason enough to conclude that the cause of action in this matter arose in Nairobi, and neither is the reason contained in the charge sheet in the criminal case.
23. The power of the High Court to transfer suits from one Court to another is contained under Section 18 of the Civil Procedure Act which states as follows; -
“18. Power of High Court to withdraw and transfer case instituted in subordinate court
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—
a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—
(i) try or dispose of the same;
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”
24. In David Kabungu v Zikarenga & 4 others Kampala HCCS No. 36 of 1995, the Court stated the following concerning circumstances under which a court may order transfer of suit; -
“Section 18(1) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the Applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purposes of working injustice. What the court has to consider is whether the Applicant has made a case to justify it in closing doors of the court on which the suit is brought to the Plaintiff and leaving him to seek his remedy in another jurisdiction …….. It is a well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are balance of convenience, questions of expenses, interest of justice and possibilities to undue hardship and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the duplication must be refused. Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer could be refused……"[Emphasis added]
25. Perusing the Defendant’s application and the supporting affidavit, I note that no basis has been disclosed in support of the application for transfer. In its submissions, the Defendant has merely stated that it has its offices in Nairobi and that the charge sheet in which its director has been charged with an offence related to the subject matter in question indicates that the cause of action in Nairobi.
26. As pointed out above, a suit may be instituted where the cause of action, whether partially or wholly, arises. The Applicant has not controverted the Respondent’s assertion that the Flow Meter was to be supplied and installed at the Respondent’s place of business in Thika.
27. In the premises, I find that the Defendant/Applicant has not laid any basis for this court to exercise its power of withdrawal and transfer of suits under section 18 of the Civil Procedure Act in its favour.
28. In sum, the Defendant’s application dated 9th January 2024 for the withdrawal and transfer of the Thika CMCC No. E472 of 2021 to the Chief Magistrate’s court in Milimani is not merited and is hereby dismissed with costs to the Respondent/Plaintiff.
29. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 19TH DAY OF DECEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Munoko………………...For the Applicant
Martin Maina………………...For the Respondent