Samuel Kimunya Gachuhi t/a Sakiga Estate v Nanga Kihoto Farmers Co-operative Society [2017] KEELC 1049 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Discretion under Section 18 of the Civil Procedure Act to transfer a suit from a subordinate court
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
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.
Whether there was anything to transfer
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
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.
Pecuniary jurisdiction of the Chief Magistrate's Court
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 9th November 2015 is dismissed entirely
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Osano & another v Miyogo[2023] KEELC 19981 (KLR)22 Sept 2023
Cite this brief
#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.