1. I have perused the Notice of Motion dated 30th October 2024, the supporting affidavit, and the annexure attached thereto vide which the Applicant seeks the following orders:-
1. This application be certified urgent and the same be heard ex parte in the first instance;
2. THAT Mariakani Succession Cause No. E022 of 2024 – In the Estate of Mcharo Charity Egwa (Deceased) be transferred to Mombasa Chief Magistrate’s Court for hearing and final determination;
3. This Honorable court be pleased to issue such further or other order(s) as it may deem just and expedient for the ends of justice; and
4. The costs of this application be provided for.
2. The application is not contentious as the applicant seeks to transfer the case from Mariakani Law Courts, where he says it was wrongly filed, to the Chief Magistrates' Court, Mombasa. The applicant contends that the deceased was a resident of Kwa Shee, in Jomvu within the County of Mombasa and that her assets are situated within the same county.
3. This Court's power to transfer suits is found in section 18 of the Civil Procedure Act, which provides as follows:-
"(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 suchnotice, 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it was withdrawn.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 Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special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in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn."
4. It is apparent from what has been stated that the suit was erroneously filed in Mariakani. This is evident from the Petition, which has been attached to the Notice of Motion, which indicates the court as being the Chief Magistrate's Court at Mombasa.
5. In the circumstances, so that the succession matter can be heard without delay, I order that the Mariakani Succession Cause No. E022 of 2024; In the Estate of Mcharo Charity Egwa (deceased) be transferred to Mombasa Chief Magistrate’s Court for hearing and final determination. I make no orders as to costs as this is a non-contentious succession matter.
Orders accordingly.