Wakilii

Kenya Glass Works Ltd v Meucci (Civil Suit No. 326 of 1954)

East African Court of Appeal · [1954] EACA 44 · 1954 Application Granted — Suit Transferred AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by defendant to transfer suit from Supreme Court at Nairobi to Subordinate Court at Mombasa
Decision
Suit transferred to Subordinate Court at Mombasa for hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court has jurisdiction to hear all suits regardless of pecuniary value under Article 4(2) of the Kenya Order in Council 1921. Section 11 of the Civil Procedure Ordinance is a rule of procedure, not jurisdiction, requiring plaintiffs to institute suits in the court of the lowest grade competent to try them. The Resident Magistrate at Mombasa was competent to hear the suit as the breach arose within his local jurisdiction and fell within his extended pecuniary jurisdiction. The suit was transferred to Mombasa as the forum conveniens. The plaintiff erred in procedure and was condemned in costs.

Outcome

Suit transferred to Subordinate Court at Mombasa for hearing

Facts

The plaintiff instituted a suit for damages for breach of contract in the Supreme Court at Nairobi, claiming Sh. 1,750. The alleged breach occurred in Mombasa where the defendant company was domiciled. Prior to the suit, the Resident Magistrate at Mombasa had been granted additional pecuniary jurisdiction up to Sh. 3,000 over Europeans under section 4 of the Courts Ordinance. The defendant applied to transfer the suit to Mombasa, deposing that it had 10 witnesses whose absence would cause a total stoppage of factory work with daily production losses of Sh. 4,500. The plaintiff replied that his employers would be unwilling to give him leave and that he had one witness in Nairobi, but did not deny the defendant's statements about production losses.

Issues

  1. Whether the suit should be transferred from the Supreme Court at Nairobi to the Subordinate Court at Mombasa on grounds of forum conveniens.
  2. Whether the Supreme Court has jurisdiction to hear suits of small pecuniary value where a subordinate court has concurrent jurisdiction.
  3. Whether section 11 of the Civil Procedure Ordinance operates to exclude the jurisdiction of the Supreme Court or merely prescribes a rule of procedure.
  4. What is the meaning of 'competent' in section 11 of the Civil Procedure Ordinance.
  5. How costs should be apportioned where a plaintiff institutes a suit in the Supreme Court when it should have been brought in a subordinate court.

Orders

  • Suit transferred to the Court of the Resident Magistrate at Mombasa for hearing.
  • Costs of the opposed application to the applicant (defendant) in any event, to be taxed and paid forthwith.
  • If plaintiff ultimately successful, entitled to no more costs than if suit had been instituted in the Magistrate's Court.
  • If defendant ultimately successful, entitled to costs in the Supreme Court to date.
  • All other costs at the discretion of the Magistrate.

Rules and key headnotes

Civil Procedure — Jurisdiction — Supreme Court jurisdiction over petty suits — Concurrent jurisdiction of subordinate courts
The Supreme Court has jurisdiction to hear all suits however small the sum sued for by reason of Article 4(2) of the Kenya (Colony) Order in Council, 1921, which gives the Supreme Court jurisdiction over all persons and all matters in the Colony. This jurisdiction is neither taken away nor limited by the granting of concurrent jurisdiction in petty suits to subordinate courts, which do not thereby achieve exclusive jurisdiction.
Civil Procedure — Section 11 Civil Procedure Ordinance — Rule of procedure not jurisdiction — Duty to institute suit in court of lowest grade
Section 11 of the Civil Procedure Ordinance legislates not on jurisdiction but on procedure. The choice of forum is the plaintiff's and a duty is cast on him to select the forum indicated by the law of procedure, which is the court of the lowest grade competent to try the suit. Such a rule does not oust the jurisdiction of the Supreme Court.
Civil Procedure — Competence of subordinate court — Meaning of 'competent' in section 11
'Competent' in section 11 of the Civil Procedure Ordinance has reference to the jurisdiction of the subordinate court. In this sense jurisdiction means the extent of the authority of the court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction.
Civil Procedure — Transfer of suits — Forum conveniens — Section 18 Civil Procedure Ordinance
Under section 18 of the Civil Procedure Ordinance, the Supreme Court may transfer a suit to a subordinate court competent to try it. Where it is not impossible for the plaintiff and his witness to attend at the alternative forum and the defendant would suffer grave prejudice from hearing at the plaintiff's chosen forum, the court will order transfer to the forum conveniens.
Civil Procedure — Costs — Error in procedure — Plaintiff instituting suit in wrong court
Where a plaintiff errs in procedure by instituting a suit in the Supreme Court when it should have been brought in a subordinate court, and has no good excuse for the error, he invites condemnation in all costs thrown away. If ultimately successful, the plaintiff is not entitled to any more costs than if he had instituted the suit in the subordinate court. If the defendant is successful, he is entitled to his costs in the Supreme Court to date.

Legislation cited (8)

  • Civil Procedure Ordinance s.18
  • Civil Procedure Ordinance s.11
  • Civil Procedure Ordinance s.14
  • Civil Procedure Ordinance s.27
  • Courts Ordinance (Cap. 3) s.4
  • Courts Ordinance (Cap. 3) s.16
  • Courts Ordinance (Cap. 3) s.17
  • Kenya (Colony) Order in Council, 1921 Article 4(2)

Cases cited (3)

  • Nidhi Lal v Mazhar Husain (1885) I.L.R. 7 All. 230
  • Matra Mondal v Hari Mohun Mullick (1890) I.L.R. 17 Cal. 155
  • Krishnasami v Kanakasabai (1891) I.L.R. 14 Mad. 183

Full judgment

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Kenya Glass Works Ltd v Meucci (Civil Suit No. 326 of 1954) [1954] EACA 44 (1 January 1954)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.