Uneeco Paper Products Limited v Print Fast Kenya Limited (Insolvency Cause 20 of 2020) [2023] KEHC 20802 (KLR) (18 July 2023) (Ruling)
Neutral citation:
[2023] KEHC 20802 (KLR)
Republic of Kenya
Insolvency Cause 20 of 2020
OA Sewe, J
July 18, 2023
Between
Uneeco Paper Products Limited
Petitioner
and
Print Fast Kenya Limited
Debtor
Ruling
1.Before the Court for determination is the Notice of Motion dated May 13, 2021. It was filed by the debtor, Print Fast Kenya Limited pursuant to Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules for orders that the Court be pleased to transfer this suit and all proceedings herein to the Commercial & Tax Division of the High Court at Nairobi for trial and disposal; and that costs of the application be provided for.
2.The application was premised on the grounds that the applicant’s principal place of business is in Nairobi; and that the advocates for both the applicant and the petitioner are also based in Nairobi. It was therefore the contention of the applicant that it would cause further inconvenience to the parties and their advocates if the suit was to continue to be handled in Mombasa taking into account the travel restrictions introduced by the Ministry of Health because of Covid 19 pandemic. These grounds were explicated in the Supporting Affidavit sworn by a director of the applicant, Mr. Ajay Kiritkumar Shah, sworn on May 13, 2021 and the documents annexed thereto.
3.The application was however resisted by the petitioner/respondent. In a Replying Affidavit sworn by Ebrahim Jagani and filed on June 10, 2021, the respondent averred that its Head Office is based in Mombasa at Pamba Road, off Refinery Road in Changamwe; and that its postal address is P.O. Box 81522-80100 Mombasa. Mr. Jagani further averred that the respondent’s advocates have their main office in Mombasa, situate at Ralli House, North Wing on Nyerere Avenue; and that the transaction giving rise to this suit arose in Mombasa and therefore that it is best placed managing the suit at Mombasa.
4.In addition to the foregoing, Mr. Jagani pointed out that the Judiciary has since implemented and installed an effective e-filing system and online platforms for virtual hearing; and therefore the parties do not need to physically file pleadings or attend court proceedings in person. Thus, according to Mr. Jagani, the applicant has not shown any cogent prejudice it has suffered or stands to suffer if the matter is heard and concluded in the current court. He added that the matter is at an advanced stage and the only remaining part is for the parties to file their written submissions with regard to the main Petition as the parties do not intend to call any witnesses. Thus, the respondent prayed that the application be dismissed with costs.
5.A similar application was filed in Mombasa High Court Insolvency Cause No. E003 of 2020 involving the same parties; in which the applicant herein is the respondent and Uneeco Paper Products Ltd, is the Petitioner. The parties were in agreement that the two matters be handled simultaneously. Hence the two applications were disposed of by way of written submissions, pursuant to the directions given herein on July 8, 2021. Accordingly, Mr. Olwande for the applicant relied on his written submissions dated September 20, 2021. He proposed one issue for determination; namely, whether the application is merited. He submitted that the application is indeed merited and was filed without any delay for sufficient grounds. He relied on Section 18 of the Civil Procedure Act and the cases of David Kabungu v Zikarenga & 4 Others, Kampala HCCS No. 36 of 1995 and Hangzhou Agrochemical Industries Ltd v Panda Flowers Ltd [2012] eKLR for the factors to take into consideration in an application of this nature, namely: the motive and character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and preparing witnesses as well as the overall interests of justice.
6.On her part, Ms. Njagi for the respondent relied on her written submissions filed on May 10, 2022. She submitted that since the High Court has unlimited jurisdiction over civil matters, Section 18 of the Civil Procedure Rules is inapplicable to the circumstances of the case. She pointed out that Section 18 of the Civil Procedure Act only applies in connection with matters pending before the subordinate courts; and therefore that it is an absurdity to have a matter pending before the High Court transferred to a Court of concurrent jurisdiction.
7.Ms. Njagi further pointed out that the parties have another similar matter, namely Mombasa High Court Insolvency Cause No. E003 of 2020 filed by the applicant which has been prosecuted alongside this Petition. She therefore argued that the reason proffered by the applicant for transfer is equally available to the respondent as the petitoner in Insolvency Cause No. E003 of 2020. In her submission, the applicant stands to suffer no prejudice whatsoever if both matters were to be heard and determined in Mombasa High Court granted that court proceedings have now been digitized. She therefore prayed for the dismissal of the application.
8.I have given due consideration to the applications in the light of the averments set out in the parties’ respective affidavits and written submissions. The two issues arising therefrom for determination are whether the Court has the jurisdiction to transfer this suit to Milimani Commercial and Tax Division, High Court in Nairobi; and if so, whether sufficient cause has been shown for such transfer.
9.The applications were anchored on Section 18 of the Civil Procedure Act, which provides:(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(b)withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i.try or dispose of the same; or(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
10.From the above, it is plain that Section 18 of the Civil Procedure Act does not make provision for the transfer of a suit from one High Court station to another. The question to pose then is whether there indeed exists jurisdiction for such transfer, and my answer is that such an application can only be entertained in the interest of justice pursuant to the Court’s inherent jurisdiction. In this regard I am in agreement with the position taken in Hangzhou Agrochemical Industries Ltd (supra) by Hon. Odunga, J (as he then was) when he held: -
11.Further, Hon. Ngugi, J. (as he then was) in the case of Daniel Kimani Moseka v Japheth Arthur Mwangi Kiurire (2012) eKLR, stated: -
12.Similarly, in Rapid Kate Services Limited v Freight Forwarders Kenya Limited & 2 Others [2005] 1 KLR 292, Hon. Emukule, J. held:
13.It is, therefore, my finding that under its inherent jurisdiction and where sufficient cause has been shown, the Court has the power to transfer a suit from one registry of the High Court to another if the interests of justice so dictate.
14.In the instant matter the justification given for the transfer is convenience of the parties and to this end counsel relied on the Hanzhou Agrochemicals Industries Ltd v Panda Flowers Limited (supra) for the holding that:
15.While it is true that the applicant and its advocates are based in Nairobi, that is not necessarily the case with the respondent and its advocates. The pleadings show that both the respondent and his advocates have their principal offices in Mombasa. This is significant because the parties have two matters running simultaneously in which their roles have been interchanged. I therefore find merit in the respondent’s argument that if the applicant’s and its advocate’s principal place of business is the ground for transfer, then the same would also work in favour of the respondent herein as the respondent in Insolvency Cause No. E003 of 2020. Thus, having taken all the relevant factors into account, it is my finding that, given the circumstances of the two petitions and principle of equality of arms, no justification has been made for the transfer; and that it is in the interest of justice that the two matters be proceeded with to conclusion in Mombasa.
16.The other concern raised by the applicant, namely, the inconveniences to do with Covid 19 have since been overtaken by events with the implementation of e-filing system and virtual court sessions. A perusal of the proceedings show that the matters have hitherto proceeded virtually and therefore entailing no particular need for travel or physical attendance.
17.Thus, having put all these factors into consideration, I am far from persuaded that a plausible justification has been given by the applicant to warrant the transfer of the two suits to the High Court at Nairobi. Accordingly, the two applications dated May 13, 2021 filed herein and in Insolvency Cause No. E003 of 2020 are hereby dismissed with an order that the costs thereof be in the causes.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 18TH DAY OF JUlLy 2023OLGA SEWEJUDGEINSOLVENCY CAUSE NO. 18 OF 2020 RULING 3