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|Case Number:||Civil Appeal 141 of 2008|
|Parties:||TIMSALES KENYA LIMITED v RONALD NGALA OMUKA|
|Date Delivered:||30 Apr 2010|
|Court:||Court of Appeal at Kisumu|
|Citation:||TIMSALES KENYA LIMITED v RONALD NGALA OMUKA  eKLR|
|Case History:||Appeal from a portion of ruling and order in Kisumu C.M.C.C 74 of 2006|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
4(Appeal from a portion of ruling and order in Kisumu C.M.C.C 74 of 2006)
1. This is an appeal from the ruling and order of the learned Principal Magistrate Mrs. On’ginjo delivered on 27th of November, 2008 in C.M.C.C. No.474 of 2006. The appellant being dissatisfied with a portion of the ruling and orders given, appeals on the following grounds:-
(a) The learned trial magistrate erred in fact and in law in not appreciating that the appellant had raised matters of a fundamental nature to warrant the grant of all the orders sought in the application;
(b) The learned trial magistrate erred in fact and in law in failing to appreciate sufficiently or at all the principles applicable on determining the application that was before her;
(c) The learned trial magistrate erred in fact and in law in failing to appreciate that the orders sought in the application before her were for striking out of the suit as opposed to that of staying the suit;
(d) The learned trial magistrate erred infact and in making a ruling that was not tenable in law by staying the proceedings of the suit in its entirety on the one hand and awarding the defendants costs of the suit on the other hand.
2. The appellant urged the court to set aside the ruling and the order and for the court to strike out and dismiss the suit with costs. The appellant also seeks for costs of the appeal and application dated 9th January 2001.
3. It was submitted on behalf of the appellant that a court with no jurisdiction cannot transfer a suit to another court neither could the court order a stay of the same.
4. The respondent objected to the appeal on the grounds that the appellant had in the defence admitted jurisdiction of the court. That the court had jurisdiction to order for stay and the respondent has a right to institute a fresh suit.
5. Having considered the submissions by counsel for the parties, there are three issues for consideration by this court as follows:
(i) Whether the Chief Magistrate’s Court at
Kisumu had territorial jurisdiction to
hear the matter in the first place.
(ii) Whether the principal magistrate had
powers to stay proceedings;
(iii) Whether this court ought to strike out
the suit in its entirety.
6. The respondent was described as a male adult residing in
Section 11 of the Civil Procedure Act requires that a suit be instituted in the court of the lowest grade competent to try it. Section 14 of the Civil Procedure Act provides:
“Where a suit is for compensation for wrong
done to the person or to movable property,
if the wrong was done within the local
limits of the jurisdiction of one court and the
defendant resides or carries on business
or personally works for gain, within the local
limits of the jurisdiction of another court,
the suit may be instituted at the option of the
plaintiff in either of the two courts.”
The plaintiff in this case could only file his suit in Nakuru. He could not file his suit in Kisumu. It therefore, follows that the Chief Magistrate’s court in Kisumu lacked territorial jurisdiction. Which indeed the Principal Magistrate acknowledges in the observation she made (page 2 of the ruling) See page 3 of the Record of Appeal where she stated:
“I will therefore order for a stay of these proceedings pending filing in court within territorial jurisdiction in Nakuru.”
Having found that the lower court had no territorial jurisdiction, it means that the matter before court was incompetent and the learned Principal Magistrate ought not to have stayed and incompetent suit. Indeed in staying the proceedings the order does not assist the respondent as the suit is not capable of being transferred. In
2. The jurisdiction either exists or does not
abi nito and the non-constitution of the
forum created by statute to adjudicate
on specified disputes could not of itself
have the effect of conferring jurisdiction
on another forum which otherwise lacked
3. Jurisdiction cannot be conferred
by the consent of the parties or
be assumed on the grounds that parties
have acquiesced in actions which
presume the existence of such
4. Jurisdiction is such an important
matter that it can be raised at any stage of
the proceedings even on appeal.
5. Where a cause is filed in court without jurisdiction, there is no power on that
court to transfer it to a court of
From the above authority it, therefore, follows that the
respondent’s argument that the appellant had accepted jurisdiction in its defence, does not confer jurisdiction and the issue was thus properly raised.
For the reasons above mentioned this appeal successeds, the plaint in CMCC No.474 of 2006 is struck off with costs. The costs of this appeal is awarded to the appellant.
DATED AND DELIVERED THIS 30TH APRIL, 2010
J U D G E
In the presence of:
……………………………………..Counsel for the Appellant
……………………………………..Counsel for the Respondent