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JudgmentEDWIN OBIRI MOGERE VS VANE KEMUNTO AUKA7 min read

EDWIN OBIRI MOGERE VS VANE KEMUNTO AUKA

High Court at Kisii High Court · · Odera Teresa Achieng


The applicant filed Notice of motion dated 1.2.24 seeking :

That this Honourable court be pleased to issued and Make an order for stay of Kisii Lower court no . E069 of 2023 between the parties herein to the Chief magistrate’s Court at Muranga for hearing and determination.

  1. ………………………………………spent
  2. That costs be in the cause.

The application is based on the grounds;

  1. that the minor subjects reside in Muranga Court within the Jurisdiction of Muranga Chief magistrates Court .
  2. The minors are already in school and have settled in Muganga County .
  3. The applicant is a resident of Muranga county .
  4. The parties were resident in Muranga County where the issues of child custody arose and the Children officer Muranga tried to arbitrate on the issues to no avail .
  5. That Muranga Chief Magistrate’s court has jurisdiction to hear the case as he and the minors reside there and the jurisdiction arose in Muranga .
  6. That it  in is in the interest of justice that the application be allowed
  7. No loss will be occasioned to the respondent.

The application is based on the annexed affidavit of the applicant in which  he deponed that he is the biological father of the children and is a physician medical doctor working for county Government of Muranga . He said that the children JN and JM go to Bishop Kairo Educational centre where they are well settled as per copies of fees receipts (EOM 1). Also that JM is passionate about football and a member of Pheonix Soccer academy  and JN is a member of Fine Girl initiative and they are both being sponsored by the school . He annexed a certificate of participation by JM and letter from Fine Girl initiative (EOM 2 and EOM 3). He says the transfer will allow him to attend to his duties in Muranga County and also attend court . he annexed his work duty rota and travel clearance of his colleague (‘’EOM 4’’  and ‘’EOM 5 ‘’respectively ). Further that he previously missed work severally due to attendance of the lower court case and that if the case is transferred to Muranga Court then he will be able to work without interruption and also attend to his work duties.

He said that the respondent left Muranga and insisted that they relocate to Kisii which meant that he had to resign from work . He reported to Muranga Children’s office where they entered into a Parental responsibility agreement in which the applicant was granted actual custody of the children while she got unlimited access but she refused to sign the same , He annexed the ‘’agreement ‘(‘’EOM 6’’). Also that the respondent unceremoniously left Muranga for Kisii leaving the minors with him and he has taken good care of them for 12 months .

Also that it will be in the best interest of the minors that the matter be transferred to Muranga court incase their physical attendance

is required.

The respondent filed her replying affidavit dated 18.2.24 in opposition to the application, she told this court that the lower court suit was filed on 14.7.23 and service was effected upon the applicant and he instructed counsel to act for him on 8.8.23. he said that the applicant failed to attend court severally as follows ;

a. 5.1023 – mention.

b. 3.11.23 – hearing though his counsel was present. Orders were made for the children to be availed in court.

c. 27.11.23 – hearing . applicant was absent . The children  were not produced .

d. 15.12.23 – hearing -Magistrate was absent.

e. 25.1.24 – hearing , applicant absent . Respondent testified and closed her case.

f. 9.2.24 Defence hearing , applicant was absent and filed the instant application.

The respondent to the court that the applicant disobeyed the orders of the court . Further that applicant has not disclosed that she stays in Kisii and that he removed the children form imperial school without the permission of the trial court and that he has not laid out good reasons to warrant transfer of the lower court case to another court . Also that the applicant has not stated any difficulty he will face if he testified before the trial court. Further that  the  work of the  applicant will not be affected by his testimony in Kisii Court.

The application proceeded by way of written submissions.

In the case No. 2 of 2016 Kithita Ngeana vs Mwaniki Kisume, the court while commenting on the case of Habazhou Agro Chemicals Industries Ltd vs Panda Flowers Ltd 2012 held that “ ..In my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case”.

I have carefully considered the application the reply and the able submissions filed by both parties . The issue for determination is whether the applicant had met the threshold for transfer of the case from Kisii Chief Magistrate’s court to Muranga Chief Magistrate’s court

Section 18 of the Civil Procedure Act that stipulate thus:

“(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; or

(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”.

It is clear that the before orders for transfer of suit are made the applicant must establish the following  grounds ;

  1. That the suit has been filed in a court without territorial or pecuniary jurisdiction .
  2. That  the will suffer  expense .
  3. That he will suffer  inconvenience unless the suit is transferred in his favour  .
  4. That he will suffer undue hardship if the case is not transferred.

In this case , the applicant says that  he wants the suit transferred on the ground that the suit in Kisii is inconvenient to  him as he works in Muranga and that the children also schooling  in Muranga. 

The respondent has deponed that the applicant is not entitled to the orders sought for breaching court orders dated 27.11.23.  This  is a children matter and the best interest of the children is paramount under Section 8 of Children Act 2022. However the issue of disobedience of court order  is a preliminary issue which ought to be dealt with first .

I have perused the record of the lower court and I note that on  9.11.23 the court ordered that the applicant produce the children   in court on 27.11.23 but the said order  was not complied with  and the applicant has never attended court.  The Case has proceeded substantially . The applicant now wants the matter transferred to Muranga  yet he has not complied with the orders of the court . The applicant had an obligation to  obey the said orders as court orders are not issued in vain and a person who has disobeys  court orders is not entitled to any  orders of the court before he complies with the earlier orders .

I read mala fide in the application dated  1.2.24 as it is clear that the respondent is seeking transfer of this matter to Muranga to defeat the said lower court orders  .

In any event the case of plaintiff/respondent  was taken ex -parte and the case is now pending defence hearing . No prejudice would be occasioned  or hardship to the applicant as the courts have now embraced virtual hearings and he can  testify in the comfort of his office . The children’s court at Kisii has jurisdiction to hear the matter and has substantially proceeded with the  same and it is now pending defence hearing. It is clear that the applicant is forum shopping .

The applicant has not showed that he will suffer, expense  inconvenience or undue hardship if the case is not transferred .

               Though this court has jurisdiction to or transfer of suits under Section    

               18 of Civil  Procedure Act no sufficient  reasons to warrant transfer 

               of this suit .

                The application dated 1.2.24 is misconceived and an abuse of

                 the   process of this court . The same is dismissed .  

                  Each party to bear his  own  costs .

T.A ODERA

JUDGE

29.11.24

Delivered virtually in the presence of :

CA: Oigo

Aminga holding being of Mr Ochwangi for respondent .

Wanjiru Njehia for the respondent.

    EDWIN OBIRI MOGERE VS VANE KEMUNTO AUKA EDWIN OBIRI MOGERE VS VANE KEMUNTO AUKA