ANALYSIS AND DETERMINATION.
10.This Court has considered the application filed herein and the affidavit filed in support thereof, the replying affidavit as well as the written submissions by Counsel for the parties. The issue for determination is if the instant application is merited.
11.In the affidavit filed by the applicant, it deposed that Mombasa CMCC No. 1085 of 2020 was instituted on 18th September, 2020 and that it is desirous to have the said suit transferred to Malindi Chief Magistrate’s Court for hearing and determination on the basis of territorial jurisdiction.
12.It was stated by the applicant that it carries on its business in Malindi, Kilifi County and the alleged cause of action giving rise to this suit arose within Kilifi County as the respondent allegedly supplied construction materials to the applicant who carries on business in Malindi, in Kilifi County. The applicant averred that pursuant to the provisions of Section 15 of the Civil Procedure Act, 2010, suits shall be instituted where the defendant resides or carries on business or where the cause of action wholly or partly arises.
13.The applicant contended that it continues to be prejudiced since its representatives will have to travel to Mombasa for Court proceedings thereby incurring expenses in respect of the same. He was of the view that it is in the interest of justice for the instant application be allowed since no prejudice will be suffered by the respondent if the same is allowed.
14.The respondent in its replying affidavit deposed that according to the rules on institution of suits, a suit can be instituted where the defendant resides or where the cause of action arose. It stated that in this case, the respondent’s place of business is Haile Selassie Avenue, opposite Tuskys Supermarket in Mombasa, whereas the cause of action arose in Mombasa where the respondent’s offices and warehouse are located as can be seen from the copies of the delivery note ad invoice.
15.The respondent averred that the contract/order to purchase the items required by the applicant was done at its offices and that the location or place where the materials were to be delivered, is irrelevant when it comes to where a suit will be instituted.
16.It was contended by the respondent that the application herein lacks merit, it is vexatious and is an abuse of the Court process since before Mombasa CMCC No. 1085 of 2020 was filed, the applicant had issued cheques to the respondent that it later advised the respondent not to bank for lack of funds, which confirms the applicant’s indebtedness to the respondent.
17.The respondent contended that other than the mere allegation that the applicant is situated at Malindi, there is no document produced to show that the applicant is based there.
18.It is undisputed that the High Court has the power to withdraw and transfer cases instituted in lower Courts as provided under Section 18 of the Civil Procedure Act which states as follows-
19.The applicant averred that it carries on its business in Malindi, Kilifi County and that the respondent allegedly supplied construction materials to it in Malindi thus the cause of action giving rise to Mombasa CMCC No. 1085 of 2020 arose within Kilifi County. It is noteworthy that when one looks at annexure MTK-3 of the applicant’s supporting affidavit, a copy of the Summons to enter appearance in Mombasa CMCC No. 1085 of 2020 and a demand letter dated 1st September, 2020 both addressed to the applicant herein, the applicant’s address is shown as being in Malindi. It is therefore safe to conclude that the applicant ordinarily carries on its business in Malindi.
20.It is not in dispute that the respondent carries on its business in Mombasa and that the goods and/or items were ordered for, from the respondent’s offices and/or warehouse in Mombasa and thereafter delivered in Malindi. The application before this Court has been brought under the provisions of Section 15 of the Civil Procedure Act which provides that-
21.In light of the foregoing provisions of the law, it is evident that Mombasa CMCC No. 1085 of 2020 should have been filed in Malindi since that is where the applicant carries on its business. Since the suit herein arises out of a contract, Malindi is also the place where the performance of the contract was completed as the goods were delivered to Malindi. The said suit could also have been filed in Mombasa since that is where the contract was made, but the respondent ought to have first sought leave of Court and/or the applicant ought to have acquiesced to the same. The respondent herein did not seek leave of the Court before it filed CMCC No. 1085 of 2020 in Mombasa and the applicant has objected to the continuance of the said suit in Mombasa through the filing of the application herein.
22.In the case of David Kabunga v Zikarega & 4 others (Kampala HCC No. 36 of 1995) which was cited with approval in the case of GKK v ANK & another  eKLR, the Court stated as follows-
23.I wholly associate myself with the holding in the above case. Moreover, the applicant averred that it stands to be prejudiced since its representatives will have to travel to Mombasa for Court proceedings thereby incurring expenses. On the other hand, the respondent herein has not argued and/or alluded to the fact that it will be inconvenienced or suffer undue hardship or that the interest of justice will not be served by a transfer of the suit herein from Mombasa to Malindi Law Courts.
24.I am persuaded that the applicant has discharged its onus of proof that the application for transfer ought to be granted bearing in mind that the applicant ordinarily carries on its business in Malindi andthe performance of the contract was completed in Malindi. The foregoing will cushion the applicant from incurring transport costs and incidental expenses for its witnesses, in defending Mombasa CMCCC No. 1085 of 2020. Having the suit heard in Malindi will ensure that the applicant is not prejudiced by having to defend the dispute in issue outside his territorial jurisdiction.
25.It is the finding of this Court that the application herein is meritorious and the same is allowed in the following terms-a. That Mombasa CMCC Case No. 1085 of 2020 is hereby withdrawn from the Chief Magistrate’s Court, Mombasa and transferred for hearing and final determination in the Chief Magistrate’s Court in Malindi; andb. The costs of this application shall be borne by the respondent.It is so ordered.