Application to transfer Chief Magistrate's Suit No. 3510 of 2018 (Milimani) to the Chief Magistrate's Court at Kisumu
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata arising from a withdrawn transfer application in the lower court
Res judicata does not arise because the earlier application was withdrawn and not determined on merits.
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a prior application dated 16th November 2018 in the lower court seeking transfer to Kisumu, which was opposed and then withdrawn.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.
Territorial jurisdiction and choice of forum under Section 15 of the Civil Procedure Act
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.
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.
Legal principles established
#- A withdrawn application that was never heard and determined on merits does not found a plea of res judicata.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
#- 1.The application dated 25th March, 2019 is allowed
- 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.Costs in cause
- Jurisdiction invoked
- Sections 17 and 18 of the Civil Procedure Act (power to transfer suits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.