High Court at Nairobi (Milimani Law Courts)
Miller v Miller
High Court, at Nairobi
January 22, 1988
Civil Case No 2855 of 1987
Civil Practice and Procedure – transfer of suit – suit seeking declaration of dissolution of marriage–– suit filed in the High Court – defendant seeking transfer of suit to District Magistrate’s Court – whether transfer would be to fetter the High Court’s unlimited original jurisdiction – whether by filing counterclaim the defendant had submitted to the Court’s jurisdiction - Constitution section 60(1); Civil Procedure Act (cap 21) sections 11; 18(1)(a) – Magistrates’ Courts Act section 9(a)
Constitutional law – jurisdiction of the High Court – unlimited original jurisdiction conferred under the Constitution section 60(1) – whether conferment of the jurisdiction absolute–– party seeking to transfer suit for dissolution of marriage from High Court to subordinate court–– whether High Court the proper forum for the suit.
Equity – declaration–– plaintiff seeking declaration for dissolution of marriage – suit filed in the High Court - defendant seeking to transfer suit to subordinate court – whether High Court the proper forum for the suit.
The defendant/applicant sought a transfer of the suit from the High Court to a District Magistrate’s Court. She argued that under section 11 of the Civil Procedure Act (cap 21), every suit is required to be instituted in the court of the lowest grade competent to try it and that under section 9 of the Magistrates’ Courts Act, the suit could be tried by a District Magistrate.
The plaintiff/respondent opposed the application. He argued that under section 60(1) of the Constitution, the High Court had unlimited original jurisdiction; that under section 3(1) of the Judicature Act (cap 8), the subordinate courts’ jurisdiction is limited and has to be exercised in conformity with the Constitution. It was further submitted that one of the prayers sought was a declaration that the parties’ marriage be dissolved, which was an equitable remedy and therefore the High Court was the proper forum for the suit.
The defendant had also filed a counterclaim for an order of judicial separation, custody of children and maintenance.
1. The Constitution in section 60(1) did not create any exception to the High Court’s unlimited original jurisdiction in civil and criminal cases and therefore that jurisdiction could not be ousted unless by a constitutional amendment of that section. Moreover, the High Court had supervisory jurisdiction over the functioning of subordinate courts in addition to its appellate jurisdiction.
2. The provisions of the Civil Procedure Act (cap 21) sections 11 and 18(1) and the Magistrates’ Courts Act section 9 were to be exercised in conformity with the Constitution as provided by the Judicature Act (cap 8) section 3(1)(a).
3. The Judicature Act section 3(2) expressly confirmed that the High Court shall be guided by customary law in civil cases in certain instances. This was consistent and in conformity with the provisions of section 60(1) of the Constitution.
4. Therefore, the plaintiff had a right to initiate any proceedings in the High Court. He had the choice of a forum subject only to the incidence of costs.
5. By filing the counterclaim, the defendant had submitted to the High Court’s jurisdiction. Some issues raised in it were complex and beyond the jurisdiction of a subordinate court.
6. The plaintiff’s main prayer was for a declaration which being an equitable remedy, was best dealt with in the High Court.
No cases referred to.
1. Civil Procedure Act (cap 21) sections 11, 18(1)(a)
2. Magistrate’s Court’s Act (cap 10) sections 2, 9(a)
3. Constitution of Kenya section 60(1)
4. Judicature Act (cap 8) section 3(1)
5. Guardianship of Infants Act (cap 144)
Kiraitu for the Defendant/Applicant
Lakha for the Plaintiff/Respondent