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ELCAllowedNotice of Motion dated 27th November, 2015· [2016] KEELC 89 (KLR)

Geoffrey Kirecho Kamiru v Maina Karuire [2016] KEELC 89 (KLR)

Environment and Land Court
1 December 2016
LWL N Waithaka
910 words in judgment
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The bottom line

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When a counterclaim exceeds a magistrate court's monetary limit, the whole case must move to a court with jurisdiction.

What this practically means

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Executive summary

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The applicant filed a Notice of Motion dated 27th November 2015 seeking the withdrawal of CMCC No. 368 of 2011 from the Murang'a Chief Magistrate's Court and its transfer to the Environment and Land Court at Nyeri, together with costs. The applicant deponed that the magistrate hearing the suit had declined jurisdiction and directed the parties to apply for transfer to the Environment and Land Court. The respondent filed Grounds of Opposition describing the application as misconceived and an abuse of process; through counsel Mr. Wahome, the respondent argued that the applicant's counterclaim for adverse possession should have been instituted under Order 37 of the Civil Procedure Rules, relying on the Adero and Geoffrey Njoroge Kinyanjui authorities. Counsel for the applicant, Mr. Nganga, countered that the transfer merely complied with an unappealed magistrate's order and invoked Article 159 of the Constitution against procedural technicalities. Applying Section 18(b)(i) of the Civil Procedure Act, and following the Court of Appeal's decision in Onward Cargo System Company Limited v Eveready East Africa Limited, L N Waithaka J held that the counterclaim arose from the same facts as the plaint, could not be divorced from it, and, once filed, divested the magistrate's court of jurisdiction over the whole suit. Transfer to a competent court was the only logical step. The application was allowed and CMCC No. 368 of 2011 was transferred to the Environment and Land Court, Nyeri, with costs of the application to abide the outcome of the suit.

Key legal issues

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01

Whether the court has power to transfer a suit from a subordinate court to itself

Holding

Under Section 18(b)(i) of the Civil Procedure Act, the High Court may, on application or its own motion, transfer any suit from a subordinate court to itself for hearing and determination.

Reasoning

The applicant applied for transfer following the magistrate's direction that the suit be moved for want of jurisdiction to entertain the counterclaim. The court confirmed the statutory power under Section 18(b)(i) and exercised it in favour of transfer, finding no prejudice to any party.

p. 2
02

Whether the entire suit, including the counterclaim for adverse possession, should be transferred

Holding

The counterclaim arose from the same facts as the plaint and could not be divorced from it; once filed, the magistrate's court ceased to have jurisdiction over the suit, making transfer the logical step.

Reasoning

Relying on Onward Cargo System Company Limited v Eveready East Africa Limited, the court held that since the counterclaim for revocation of title exceeded the magistrate's pecuniary jurisdiction, and the claim and counterclaim arise from the same facts, the whole suit had to move to a court of competent jurisdiction. The respondent, having filed the suit in a court that then had jurisdiction, could not complain.

p. 2

Legal principles established

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  • Where a counterclaim arises from the same facts as the plaint and exceeds the magistrate's court's jurisdiction, the proper step is to transfer the suit to a court of competent jurisdiction

Court orders

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  1. 1.The application dated 27th November, 2015 is allowed
  2. 2.CMCC No. 368 of 2011 is transferred to the Environment and Land Court, Nyeri for hearing and determination
  3. 3.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 18(b)(i)
  • Civil Procedure RulesOrder 37
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Adero & another v Ulinzi Sacco Limited
    [2002] 1 KLR 57; Nairobi HC Civil Suit No. 1879 of 1999
  • Geoffrey Njoroge Kinyanjui v Nyautha Gichungu
    Nairobi Civil Appeal No. 55 of 1999
  • Onward Cargo System Company Limited v Eveready East Africa Limited
    [2015] eKLR
Jurisdiction invoked
Section 18(b)(i) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Geoffrey Kirecho Kamiru v Maina Karuire [2016] KEELC 89 (KLR)", Case Analysis (2016). Notice of Motion dated 27th November, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/89/eng@2016-12-01

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