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ELCDismissedNotice of Motion dated 9th November 2015· [2017] KEELC 1049 (KLR)

Samuel Kimunya Gachuhi t/a Sakiga Estate v Nanga Kihoto Farmers Co-operative Society [2017] KEELC 1049 (KLR)

Environment & Land Court
17 November 2017
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to rescue a land case filed in the wrong court, ruling you cannot transfer a suit that was filed where no court had power to hear it.

What this practically means

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Executive summary

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This was a Notice of Motion dated 9th November 2015 by the Plaintiff, Samuel Kimunya Gachuhi t/a Sakiga Estate AB 0571, seeking transfer of CMCC No. 589 of 2014 from the Chief Magistrate's Court at Thika to the Environment & Land Court at Thika under Section 18 of the Civil Procedure Act. The dispute arose from a Lease Agreement of 12th November 2008 over 320 acres of growing coffee on LR No. 10863 and 10864, with the Plaintiff alleging breach of contract and loss of Kshs. 15,829,000. The Plaintiff argued the subordinate court lacked pecuniary jurisdiction. The Respondent opposed, contending there was nothing to transfer because the subordinate court lacked jurisdiction, that a preliminary objection had been heard and allowed, and that the suit had been dismissed; the Plaintiff did not rebut that allegation and the Ruling was not attached. The court held that the Section 18 discretion to withdraw and transfer a suit can only be exercised where the suit was first brought to a court with jurisdiction, relying on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, Kagenyi v Musiramo and Muiru Mugeru v Chege Mukora. The court further noted the enhancement of the Chief Magistrate's pecuniary jurisdiction to Kshs. 20 million by the Magistrate's Courts Act No. 26 of 2015 and that Magistrates' Courts can hear land matters, so the suit could proceed at Thika if not dismissed. The application was dismissed entirely with costs to the Respondent.

Key legal issues

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01

Discretion under Section 18 of the Civil Procedure Act to transfer a suit from a subordinate court

Holding

The discretion exists but can only be exercised where the matter was filed in a court with jurisdiction; lack of subordinate court jurisdiction is not a ground for transfer to the High Court/ELC

Reasoning

The court relied on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd for the principle that a court without jurisdiction must down its tools, and on Kagenyi v Musiramo and Muiru Mugeru v Chege Mukora holding that suits filed without jurisdiction cannot be transferred. Since the applicant admitted lack of pecuniary jurisdiction in the subordinate court, transfer was not tenable.

p. 3
02

Whether there was anything to transfer

Holding

The Respondent alleged the subordinate suit had been dismissed for lack of jurisdiction after a preliminary objection; the applicant did not rebut that allegation, so there was arguably nothing to transfer

Reasoning

The Respondent averred that a preliminary objection on lack of jurisdiction had been heard and allowed and the suit dismissed. The Ruling was not attached, but the Applicant failed to respond to the allegation. The court accepted that if the suit had been dismissed, the transfer application was not tenable.

p. 3
03

Pecuniary jurisdiction of the Chief Magistrate's Court

Holding

The Chief Magistrate's pecuniary jurisdiction was enhanced to Kshs. 20 million by the Magistrate's Courts Act (No. 26 of 2015), and Magistrates' Courts have jurisdiction over land-related matters, so the suit could proceed at Thika if not dismissed

Reasoning

The court noted the Kenya Gazette Supplement of 18th December 2015 enhancing the Chief Magistrate's pecuniary jurisdiction to twenty million shillings under Section 7(1)(a) of the Magistrate's Court Act, and a Court of Appeal decision confirming Magistrates' Courts' jurisdiction over land matters, meaning the suit could still be heard at the subordinate court.

p. 3

Legal principles established

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  • A transfer order under Section 18 of the Civil Procedure Act can only be made where the suit was in the first instance brought to a court with jurisdiction
  • A suit filed in a subordinate court in excess of its jurisdiction should not be made the subject of a transfer order under Section 18

Court orders

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  1. 1.The Notice of Motion dated 9th November 2015 is dismissed entirely
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 18(1)(b)
  • Magistrate's Court Act No. 26 of 2015Section 7(1)(a)

Cases cited (4)

  • Owners of the Motor Vessel ‘Lillian S’ Vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Muiru Mugeru Vs Chege Mukora
    HCCC Misc.No.75 of 1976
  • Kagenyi Vs Musiramo and Another
    (1968) 1 EA 43
  • CA.No.287 of 2016
    CA.No.287 of 2016
Jurisdiction invoked
Section 18 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Samuel Kimunya Gachuhi t/a Sakiga Estate v Nanga Kihoto Farmers Co-operative Society [2017] KEELC 1049 (KLR)", Case Analysis (2017). Notice of Motion dated 9th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1049/eng@2017-11-17

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