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ELCDismissedMakueni PMCC No. 60 of 2016 (transfer application)· [2017] KEELC 292 (KLR)

Stephen Mwania Muli v Makueni County Government [2017] KEELC 292 (KLR)

Environment and Land Court
26 April 2017
CMC.G Mbogo
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Makueni land dispute stayed in the magistrates' court after a judge ruled that magistrates still have jurisdiction over land cases in Kenya.

What this practically means

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Executive summary

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This is a ruling on a notice of motion by the plaintiff/applicant seeking, under sections 1A, 3A and 18 of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, the transfer of Makueni PMCC No. 60 of 2016 from the magistrates' court to the Environment and Land Court in Nairobi, and the continuation of interim orders issued on 10th March 2016 pending determination. The application was supported by the affidavit of Stephen Mwania Mulu and opposed by the respondent through grounds of opposition. The applicant argued, relying on Malindi Petition No. 3 of 2016, that subordinate courts lack jurisdiction over environment and land matters, and feared his property on parcel Makueni/Unoa/1416 would be demolished if the interim orders lapsed. The respondent countered that the suit had been filed in a court without jurisdiction, that no statutory notice under the Government Proceedings Act was served, that a court cannot transfer a suit from a court that lacked jurisdiction, and that the application was an attempt to defeat due process. The court agreed it had power under section 18 to transfer suits and agreed that a suit filed without jurisdiction may not be transferable. However, it noted the Court of Appeal in Civil Application No. 65 of 2016 had stayed execution of the Malindi judgment, so the provisions granting magistrates' courts jurisdiction over land and environment matters remained operational. Holding that prudence demanded awaiting the Court of Appeal's final decision, the judge dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the court should transfer the land suit to the Environment and Land Court in light of the litigation over magistrates' jurisdiction in land matters

Holding

The application for transfer was dismissed because, following the Court of Appeal's stay of the Malindi judgment, the provisions granting magistrates' courts jurisdiction over land and environment matters remain operational.

Reasoning

The court accepted it had power under section 18 of the Civil Procedure Act to transfer suits, and accepted the principle that a suit filed in a court lacking jurisdiction may not be transferable. However, the Malindi High Court Petition No. 3 of 2016, which had suspended the provisions granting magistrates' courts jurisdiction over land and environment matters, was itself stayed by the Court of Appeal in Civil Application No. 65 of 2016. Consequently those provisions remained operational. The court held prudence demanded awaiting the Court of Appeal's final decision to avoid wasting judicial time, and found the application lacked merit.

p. 3
02

Whether the interim orders of 10th March 2016 should be preserved pending transfer

Holding

No preservation order was made as the application was dismissed with costs.

Reasoning

The plaintiff sought continuation of the interim orders issued on 10th March 2016 in Makueni PMCC No. 60 of 2016, fearing demolition of his property on parcel Makueni/Unoa/1416. Because the court found the transfer application lacked merit, the request fell with the application and the court made no order continuing the interim protection.

p. 3

Legal principles established

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  • The High Court has jurisdiction under section 18 of the Civil Procedure Act to transfer a suit from or to a subordinate court.
  • Where a suit is filed in a court that lacks jurisdiction, there may be no suit capable of transfer.

Court orders

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  1. 1.The application seeking transfer of Makueni PMCC No. 60 of 2016 to the Nairobi Environment and Land Court is dismissed
  2. 2.Costs of the application are awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B(2), 3A, 18
  • Civil Procedure RulesOrder 51 rule 1
  • Land Registration ActSection 2
  • Environment and Land Court ActSection 13
  • Government Proceedings ActStatutory notice requirement

Cases cited (2)

  • Malindi Law Society v The Attorney General and others
    Malindi Petition No. 3 of 2016
  • The Law Society of Kenya Nairobi Branch v Malindi Law Society and 6 others
    Civil Application No. 65 of 2016
Jurisdiction invoked
Section 18 of the Civil Procedure Act (transfer of suits from or to subordinate courts)

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, "Stephen Mwania Muli v Makueni County Government [2017] KEELC 292 (KLR)", Case Analysis (2017). Makueni PMCC No. 60 of 2016 (transfer application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/292/eng@2017-04-26

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