ISSUE No. b). Whether the Defendant/Applicant has presented sufficient reasons to warrant the transfer of suit from ELC Mombasa to Kwale Chief Magistrate’s Court?
24.Under this sub – heading, the Honourable Court holds that the Defendant/Applicant has failed to present any sufficient reasons to warrant the transfer of this suit from the ELC Mombasa to the Chief magistrate Court for the following reasons. Firstly, upon keenly assessing all the averments set out in the Plaint filed by the Plaintiff dated 21st November 2017 and the Defence by the Defendant dated 14th February, 2022 and filed in Court 21st February, 2022 it is undisputed fact that both parties reside and work in Nairobi while the suit property is in Kwale. Therefore, by dint of Sections 12 and 15 of the Civil Procedure Act, Cap. 21 the Plaintiff properly filed the suit within the local limits where the suit land was situated and that was at ELC Mombasa then from the cause of action or where the Defendants reside or carry on business. By then the ELC Kwale Courts had not yet been established. Upon the establishment of the ELC Kwale in the year 2021, the case along with many others of similar status were administratively transferred there in the month of September, 2021. Unfortunately, the only single ELC Judge there recused herself for the reasons that she knew the Plaintiff’s family and she had had a close familiarity with them. She caused it to re – transferred back to the ELC, Mombasa.Secondly, under the contents of Paragraph 10 of the filed Defence, the Defendant admits this as the right Jurisdiction by stating that:- “the contents of Paragraphs 13 and 14 of the Plaint are hereby admitted” where these Paragraphs of the Plaint states “there is no other suit pending and there have been no previous proceedings in any court between the Plaintiff and the Defendant over the same subject matter or on the same cause of action………the cause of action arose within the jurisdiction of this Honourable Court”. It is trite law that jurisdiction is everything. It goes to the root of any matter that a court of law is seized and therefore if a court lacks jurisdiction to hear and determine a matter then it is not possible for it to seek to transfer that which it does not have power to do so. It follows therefore that suit had been filed in a court with jurisdiction and thus the Defendant’s prayer before this court for transfer should hereby be refused.
25.Thirdly, from its submissions, the Defendant argued that it was the Plaintiff who had the burden of proving the value of the suit property. Indeed, the Learned Counsel cited the provisions of Order 2 Rule 6 of the Civil Procedure Rules, 2010, whereby they strongly held that parties were bound by their pleadings. He relied on the contents of Paragraph 3 of the Amended Plaint whereby the Plaintiff provided the purchase price of the suit land to be Kenya Shillings Ten Million Seven Hundred and Fourty Four Thousand Five Hundred (Kshs. 10, 744, 500/=) by 14th May, 2015 as a justification for causing the suit to be transferred to the lower Court. On the contrary, pursuant to the provisions of Section 107 of the Evidence Act, Cap. 80 to wit:-
26.Fourthly, in so far as the transfer of the suit is concerned, this Court feels that the Defendant/Applicant has been trying to transfer the suit to attain its own convenience and not that of the Plaintiff/Respondent. I would have expected that the claim of this magnitude where both parties worked for gain in Nairobi due regard would have been given to the nearest Court at a place that was more central to both of them and the suit property. In this case, Mombasa is a central place of access for both parties and the said suit property. It would be expected that sufficient notice for the hearing of the case once given should provide an opportunity for each of the parties to make arrangements to travel to Mombasa for the trial of the case and back at ease.
27.As regards the other remaining issues, I note that the Defendant filed a Notice of Motion application on 18th December 2017 whereby the Defendant never raised the issue of jurisdiction in terms of the pecuniary value of the said suit property. The Plaintiff filed an amended Plaint on 8th December 2021 stating the amount owed and the agreement that had been breach; the Defendant filed their defence on 21st February, 2022 in which defence they did not mention anything to do with the transfer of the suit to a lower court. Hence the Defendant’s claim that no prejudice would be occasioned to the Plaintiff was not convincing for it is obvious that the Plaintiff has already been prejudiced by having the suit run for all these years without any positive outcome for them. My considered view is that the Defendant has not made out a strong case for the transfer of the suit.
28.Finally, the Honourable Court do agree with the Plaintiff on the contention that land does appreciate and together with the addition to the mesne profits and Interests under the Law Society Conditions of Sale are applied from the year 2015 when they took possession of the land to date then the suit property may not be the amount that was stated in the Plaint and hence is likely to surpass the pecuniary jurisdiction of the Chief Magistrate Court.Keeping in view the aforesaid facts and circumstances of the case, and also looking at the principles laid down by the Court in “David Kabungu (supra)” the Notice of Motion application dated 14th February 2022 is not maintainable.