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Court of AppealPartially AllowedCivil Appeal No. 244 of 2010· [2019] KECA 767 (KLR)

Phoenix of EA Company Limited v Thiga T/A Newspaper Service (Civil Appeal 244 of 2010) [2019] KECA 767 (KLR)

Court of Appeal
10 May 2019
WKW. KaranjaSKS. Gatembu KairuFSF. Sichale
3,259 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a lawsuit filed in the wrong court is void from the start and cannot be fixed by transfer, consent, or the passage of time.

What this practically means

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Executive summary

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The appellant insurer appealed against a ruling of the High Court (Lesiit, J.) dated 8th August 2008 which had dismissed its application to strike out the respondent's amended plaint as void for want of jurisdiction. The respondent's vehicle was damaged in an accident and he sued for loss of user in PMCC No. 918 of 1991, although the claim exceeded the subordinate court's pecuniary jurisdiction of Kshs.125,000. He then obtained an exparte transfer of the suit to the High Court under Sections 17 and 18 of the Civil Procedure Act, and later particularised special damages of over Kshs.4 million. The appellant contended that the suit was filed in a court without jurisdiction and was therefore a nullity incapable of transfer, whether by consent or otherwise. The Court of Appeal agreed. It held that jurisdiction is primordial, must exist at the time of filing, and cannot be conferred by consent, by passage of time, or by the overriding objective. Relying on Macfoy v United Africa Co Ltd, Owners of the Motor Vessel 'Lillian S' v Caltex Oil, Equity Bank v Mutie and Joseph Muthee Kamau, the Court held that a suit filed without jurisdiction is dead on arrival and a court cannot transfer an incompetent suit under Section 18. The Court reversed the High Court ruling, allowed the appeal with costs to the appellant, and declared that the High Court judgment of 2nd September 2016 and Civil Appeal No. 6 of 2018 were nullities founded on a nullity. The judgment binds all lower courts to treat suits filed without jurisdiction as untransferrable nullities.

Key legal issues

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01

Whether a suit filed in a subordinate court lacking pecuniary jurisdiction can be transferred to the High Court under Section 18 of the Civil Procedure Act

Holding

No. A suit filed in a court without jurisdiction is a nullity and there is no competent suit capable of being transferred; consent of parties cannot confer jurisdiction.

Reasoning

The Court held that jurisdiction is primordial and must exist at filing. Where a suit is filed without jurisdiction the only remedy is withdrawal and fresh filing in a competent court. The transfer order made exparte under Sections 17 and 18 of the Civil Procedure Act could not sanctify an incompetent suit, and the subsequent consent letters could not cure the foundational defect.

p. 3
02

Whether the appellant's acquiescence or the passage of time could cure the jurisdictional defect

Holding

No. Neither lapse of time nor acquiescence confers jurisdiction; a void act is a nullity that can be challenged at any time.

Reasoning

Relying on Macfoy v United Africa Co Ltd and Peter Gichuki King'ara v IEBC, the Court held that a void act is incurably bad, requires no order to set it aside, and everything founded on it collapses. Time does not convert absence of jurisdiction into presence of it.

p. 3
03

Whether the subordinate court could have heard the suit but limited the award to its pecuniary ceiling

Holding

No. Where the liquidated sum claimed exceeds a court's pecuniary jurisdiction, the suit is a nullity in that court; it cannot partially entertain it.

Reasoning

Following Joseph Muthee Kamau v David Mwangi Gichure and Kagenyi v Musirambo, the Court rejected the respondent's submission that the magistrate could hear the claim and award only up to Kshs.125,000. Jurisdiction cannot be exercised piecemeal over a claim exceeding the court's pecuniary competence.

p. 4
04

The effect of the nullity on the subsequent High Court judgment in the substantive suit and Civil Appeal No. 6 of 2018

Holding

All orders emanating from the void suit are null and void; the High Court judgment of 2nd September 2016 and Civil Appeal No. 6 of 2018 are nullities founded on a nullity.

Reasoning

Applying Macfoy v United Africa Co Ltd, the Court declared that proceedings founded on a void act are themselves bad and incurably bad. The High Court judgment entered by Sewe J on 2nd September 2016 rests on a nullity, and Civil Appeal No. 6 of 2018 falls with it.

p. 4

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity ab initio and cannot be transferred to a competent court, whether by consent or otherwise
  • Jurisdiction must exist at the time of filing suit; it cannot be conferred later, including at judgment
  • Parties cannot by consent, nor courts by overriding objective or overriding principles, confer jurisdiction where none exists
  • Passage of time cannot cure a lack of jurisdiction

Court orders

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  1. 1.Appeal allowed with costs to the appellant
  2. 2.The Ruling and subsequent Order of the High Court (Lesiit, J.) dated 8th August 2008 dismissing the appellant's application to strike out the amended plaint is set aside
  3. 3.The judgment also applies to Civil Appeal No. 6 of 2018, Phoenix East Africa Assurance Co. Ltd v. S.M. Thiga T/A Newspaper Services

Authorities

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Legislation

  • Civil Procedure ActSection 17
  • Civil Procedure ActSection 18
  • Civil Procedure ActSection 19
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder VI A Rules 3, 5 and 8
  • Indian Civil Procedure CodeSection 24
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Nyadundo Primary School & Another v. Stephen Waweru
    CA No. 179 of 1999 (unreported)
  • George C. Gichuru v. Senior Private Kioko & Another
    (2013) eKLR
  • Peter Gichuki King'ara v. Independent Electoral and Boundaries Commission & 2 others
    (2013) eKLR
  • Macfoy v United Africa Co LTD
    [1961] 3 All ER 1169
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    (1989)
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another
    (2013) eKLR
  • Kagenyi v. Musirambo
    (1968) EA 43
On appeal from
High Court of Kenya at Nairobi
HCCC No. 248 of 1997
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the Ruling and subsequent Order of the High Court of Kenya at Nairobi (Lesiit, J.) dated 8th August 2008 in HCCC No. 248 of 1997

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Phoenix of EA Company Limited v Thiga T/A Newspaper Service (Civil Appeal 244 of 2010) [2019] KECA 767 (KLR)", Case Analysis (2019). Civil Appeal No. 244 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/767/eng@2019-05-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.