1.The application coming for consideration in this ruling is the one dated 20/2/2023 brought under sections 1A, 1B, 3A and 18 of the Civil Procedure Act seeking transfer of Milimani CMCC No. E12164 of 2021 to Chief Magistrate court at Kilifi.
2.The application is based on the following grounds;i.The applicant obtained a decree against the respondent on 2nd August 2022.ii.Despite the respondent being made aware of the same, the said decree to date stands undischarged.iii.The applicant vide an application dated 5th December 2022 initiated execution proceedings against the respondent.iv.At the heart of the proceedings are parcels of land owned by the respondent located in Kilifi being L.R nos. [particulars witheld] and [particulars witheld].v.There is therefore a need to transfer the suit to a court of competent jurisdiction within the locality of land in question for execution proceedings.vi.The honourable court is clothed with the statutory powers to issue orders for the transfer of the suit.vii.It is in the interest of justice that the orders be granted.
3.The application is supported by the affidavit of Pual Maingi Musyimi sworn on 20/2/2023 which reiterated the above grounds.
4.The respondent opposed the application by filing a replying affidavit sworn by Paul Mucai Gitau on 26/4/2023 in which he deponed that the application herein is founded on execution of a decree which, may also be a decree in the statutory demand, in Insolvency Cause Number 28 of 2023. The applicants have refused, ignored or avoided disclosing the case numbers and values for each decree in the statutory demand dated 7/3/2023 in insolvency cause number 28 of 2023.
5.He indicated if the application herein is allowed without interrogation of case number and values for each decree in the statutory demand, there will be high likelihood of multiple execution of the same decree.
6.The parties filed written submissions as follows; the applicant submitted that Dr. G.P. Mucai has sworn the stated affidavits in his role as advocate of the respondent. No documentary evidenced sealed with the company seal has been produced to lend to his authority to swear an affidavit on behalf of the respondent corporation. Further, a cursory look at the affidavits reveal that the facts deponed therein are not of the depondent’s own knowledge.
7.The applicant submitted that it is clear that the affidavit by Mr. Paul Maingi Musyimi is properly on record as it solely touches on proceedings in the lower court and the chronology of the said proceedings all within his first-hand knowledge as the advocate on record in the lower court matter. Further, the facts deponed are not contested facts nor can they be stated to be contested facts as the information therein form part of the record. A simple look at the respondent’s affidavits demonstrate there is no contention as to the chronology of events or the proceedings in the lower court. An affidavit by the name applicant in such a case would be improper as they would not have first-hand knowledge of the legal proceedings and chronology of the stated proceedings before the court.
8.The applicant submitted that the parent suit should be transferred to Kilifi for execution proceedings as the property forming the subject matter of the execution is located within the geographical jurisdiction of Kilifi Court.
9.The respondent did not file submission on the application dated 20/2/2023.
10.The sole issue for determination is whether the suit should be transferred to Kilifi from Milimani commercial court.
11.The provision which governs transfer of suits is section 18 of the Civil procedure Act that bestows upon the High Court the powers to transfer suits of a civil nature. It provides;
12.I find this case is already finalized and there is no legal basis to transfer the same to Kilifi.
13.The application dated 20/2/2023 is dismissed with no order as to costs.