5.In its Replying Affidavit sworn on 4th March 2022 by Mr. Jack Liu, its Company Director, the Plaintiff/Respondent deponed that the contract entered into by the parties herein on 15th February, 2018 was executed in Nairobi, where they both have their head offices. It is also deponed that the Defendant was served with Summons to enter appearance at their Green House next to Adams Arcade, first Floor, Office No 14 Ngong Road which is where their website is. It is further deposed that the witnesses are all based in Nairobi, hence they would incur expenses in travelling to Siaya High Court. He goes on to aver that the High Court has no power to transfer a suit to another High Court as per Section 18 of the Civil Procedure Act. It has been contended that the application has not met the threshold of stay of proceedings and in the interest of justice and balance of convenience, the same should be dismissed with costs.
6.On May 23, 2022, by consent of both counsel for the parties, agreed to file and exchange written submissions to the application dated March 8, 2023. The record confirms the Appellant’s submissions dated June 3, 2022, while the Respondent/Plaintiff’s submissions are dated June 22, 2022.
7.To determine the application, I have read through the respective affidavits alongside the written submissions filed by the parties herein. I find the issue for determination being whether the suit herein should be transferred for hearing and determination at the High Court at Siaya.
8.The legal framework upon which the Defendant’s/Applicant’s application is premised is Sections 15(a), 18(i)(b)(i), 1A, 1B and 3A all of the Civil Procedure Act.
10.Section 18(1)(b)(i) of the same Act provides:-a.………b.withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i.try or dispose of the same.
11.Section 1A then provides for:-(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
12.While Section 1B provides that:-a.the just determination of the proceedings;b.the efficient disposal of the business of the Court;c.the efficient use of the available judicial and administrative resources;d.the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; ande.the use of suitable technology.
13.Section 3A goes on to provide that:-
14.Section 15 provides for where suits should be commenced while Section 18 then clothes the court with jurisdiction to transfer any suit instituted in a specific subordinate court to another for purposes of adjudication and disposal.
15.It is the Defendant’s/Applicant’s case that the cause of action in this case arose in Bondo within the territorial jurisdiction of the High court in Siaya. The Applicant has relied on the provision under Section 15, 17 and 18, all of the Civil Procedure Act in support of this averment and further that the High Court has been clothed with jurisdiction to transfer any suit instituted in a specific sub-ordinate court to another for purposes of adjudication and disposal. That the High Court may exercise this power either suo moto or through an application by either party to a suit.
16.Further, the Defendant/applicant went on to submit that the contract clearly indicates that the contract was to be performed in Bondo, Siaya County and not Nairobi where the suit was instituted.
17.It also contends that its registered place of business is Siaya County where its principal office is situated and that the transfer will accord the witnesses easy access to court and a saving on time and expenses. Reliance has been placed on the case of David Kabungu v Zikarenga & 4 Others HCCC Case No 36 of 1995, where the Court stated that:-
18.In opposing the application, the Plaintiff/Respondent has submitted that the High Court has no power to transfer a suit from one High court to another under Section 18 of the Civil Procedure Act, which involves transfer of suit instituted in subordinate court by the High Court. According to the Plaintiff, the Defendants’ application is misguided, an abuse of due process and brought in bad faith. This Court is exercising its power to transfer a suit to another High Court is guided by several factors as laid down in the case of Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd eKLR, where it was held:-
19.Clearly, Section 18 of the Civil Procedure Act does not donate power to this Court to transfer a suit to another High Court, as they are of equal status.
20.With regard to where the cause of action in the instant suit arose, the Plaintiff has opposed this claim on the ground that the contract dated February 15, 2015 adduced as “Exhibit WO-1” was executed in Nairobi contrary to the Defendant’s/Applicant’s averment that it was executed and performed in Bondo.
21.Having examined the said contract, at the preamble thereof, the court notes that the Defendant’s place of business is described as:-
22.The Defendant/applicant being a corporation, a suit against it should be instituted at the place where it carries out business which is its principal place of business, although the Plaintiffs’ testimony indicates that both parties have their principal offices in Nairobi and or their environs, hence the suit should be heard in Nairobi. Section 15, Explanation 3(1) of the Civil Procedure Act states that:-(c)the cause of action, wholly or in part, arises.“Explanation.(3)—In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely—i.the place where the contract was made;ii.the place where the contract was to be performed or the performance thereof completed;iii.the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
23.In a case where a dispute relates to a contract, the cause of action is said to have arisen where the contract was made or where the contract was to be performed or where the money payable from the contract was to be paid.Section 15, Explanation 3 states that:-
24.In this case, the cause of action arose in Siaya as the contract was to be carried out there.
25.It is however worth-noting that while the issues to be considered when transferring a suit are the convenience of parties, their witnesses’ costs and interest of justice, the question of territorial jurisdiction is never usually a consideration. This is the position in the Ugandan case of David Kabungu v Zikarenga HCCC No 36 of 1995, where it was held that:-
26.This position is re-affirmed by the unlimited jurisdiction in civil matters as provided for under Article 165(3)(a) of the Constitution that:-
27.Having considered the arguments that have been put forth by the parties in support of their respective positions for this application, I find that n prejudice or inconvenience so great that will be occasioned upon the Respondent had been demonstrated. So that it will suffer an injustice if suit is heard in Nairobi.
28.However, more fundamentally, the application dated March 8, 2022 has no legal basis pursuant to Section 18 of the Civil Procedure Act and is therefore dismissed.
29.Each party to bear their own costs of the application.
It is so ordered.