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High CourtAllowedApplication dated 25th March, 2019 (arising from Chief Magistrate's Suit No. 3510 of 2018, Milimani)

Application to transfer Chief Magistrate's Suit No. 3510 of 2018 (Milimani) to the Chief Magistrate's Court at Kisumu

High Court of Kenya
23 January 2020
894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Courts can move a lawsuit to a different city if it is proven to be the most convenient and appropriate place for the case.

What this practically means

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Executive summary

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This was an application dated 25th March 2019 seeking transfer of Chief Magistrate's Suit No. 3510 of 2018 (Milimani) to the Chief Magistrate's Court at Kisumu for hearing and final determination. The Applicant, the Defendant in the lower court suit, supported the transfer with affidavit evidence that the cause of action arose in Kisumu, involving works allegedly carried out on a residential premises there, and that no prejudice would be suffered. The Respondent, the Plaintiff, opposed, relying on a replying affidavit showing that a similar transfer application in the lower court had been withdrawn; that the contract was made and performed in Nairobi, the Respondent's place of business; that both parties reside in Nairobi; and that the cause of action was breach of contract regarding payment of consideration rather than performance. The court, per B. Thuranira Jaden, held that the withdrawn application had not been heard and determined on merits, so res judicata did not arise. Applying Sections 15, 17 and 18 of the Civil Procedure Act, the court noted the uncontroverted evidence that the contract was made in Nairobi and the consideration payable there, giving the Respondent a choice of forum. However, since the works were carried out on Kisumu premises, territorial jurisdiction was denied in the defence, and the counterclaim raised valuation, bills of quantities and quality issues likely requiring expert reports and possibly a site visit, the court found Kisumu the more expedient forum in line with the overriding objectives of the Civil Procedure Act. The application was allowed with costs in cause.

Key legal issues

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01

Res judicata arising from a withdrawn transfer application in the lower court

Holding

Res judicata does not arise because the earlier application was withdrawn and not determined on merits.

Reasoning

The replying affidavit relied on a prior application dated 16th November 2018 in the lower court seeking transfer to Kisumu, which was opposed and then withdrawn. The court found no evidence that it was heard and determined on merits, so the doctrine of res judicata was inapplicable.

p. 1
02

Territorial jurisdiction and choice of forum under Section 15 of the Civil Procedure Act

Holding

The Respondent could lawfully file in Nairobi or Kisumu, but Kisumu is the more expedient forum given the works were carried out on premises there and expert/site visits are likely.

Reasoning

Uncontroverted affidavit evidence showed the contract was made in Nairobi, consideration payable at the Respondent's Nairobi place of business, and both parties reside in Nairobi, giving the Respondent a choice of forum. However, the works were on Kisumu premises, the defence denied territorial jurisdiction, and the counterclaim raised valuation, bills of quantities and quality issues likely requiring expert reports and a possible site visit, making Kisumu more expedient under the overriding objective.

p. 2

Legal principles established

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  • A withdrawn application that was never heard and determined on merits does not found a plea of res judicata.
  • In contract suits, territorial jurisdiction may lie at the place the contract was made, the place of performance, or the place where money payable under the contract is payable.

Court orders

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  1. 1.The application dated 25th March, 2019 is allowed
  2. 2.Chief Magistrate's Suit No. 3510 of 2018 (Milimani) is transferred to the Chief Magistrate's Court at Kisumu for hearing and final determination
  3. 3.Costs in cause
Jurisdiction invoked
Sections 17 and 18 of the Civil Procedure Act (power to transfer suits)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Application to transfer Chief Magistrate's Suit No. 3510 of 2018 (Milimani) to the Chief Magistrate's Court at Kisumu", Case Analysis (2020). Application dated 25th March, 2019 (arising from Chief Magistrate's Suit No. 3510 of 2018, Milimani). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.