1. The Applicants moved this Court by way of Notice of Motion dated 13.12.24 seeking withdrawal and transfer of the Kisii Chief Magistrate’s court Succession cause no. 40 of 2024 to this court and consolidation with this cause for hearing and determination.
2. The Application is premised on grounds that the estate in the said case is the same as the one in this cause, that is it in the interest of justice that the application be allowed and that the defendant/respondent will not in any way suffer prejudice . The application is based on the annexed affidavit of the applicants herein who deponed that the estate and liabilities in both causes and the deceased are the same and that the value of the estate exceeds the Pecuniary jurisdiction of the Chief Magistrate’s Court .
4. The application was served on the Plaintiffs/Respondents through their counsel on record but thy neither responded nor appeared in court for hearing of the application .
7. Section 18 of the Civil Procedure Act that provides that :
“(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(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn”.
10. In Ugandan case of David Kabungu –Vs. Zikarenga & 4 others, Kampala HCCS NO. 36 of 1995 where it was held ;
“Section 18 (1) (b) 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 a 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. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction… it is 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 expense, interest of justice and possibilities of undue hardship, and 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… 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 would be refused…”
13.It is clear that the Respondents filed the said succession cause in the lower court while Kennedy Bosire Gichana Advocate who is the administrator of the estate of Kingoina Onyancha & office is the petitioner herein .
16. This court has the jurisdiction to transfer cases filed outside jurisdiction under section 18 of the civil procedure Act .
17. It is in the interest of justice and good order that both causes be heard together.
18. In the premises, I order that Kisii Chief Magistrate’s court Succession cause no. 40 of 2024 be and is hereby withdrawn and transferred to this court and the same is consolidated with this cause hearing and determination
19. No orders as to costs .
20. It is so ordered.
Dated, Signed and Delivered virtually via teams platform this 8th day of April 2025 in the presence of :
Court assistant -Oigo
Mr Bosire Gichana for the applicant.
Mr Mbaka for the respondent/client
T.A ODERA
JUDGE
8.4.25