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ELCDismissedNotice of Motion dated 31st March 2017· [2017] KEELC 1268 (KLR)

Brendan Kimani Kamanu v Elizabeth Wanjiru Gichemi & Paul Mwangi Gichemi (Environment and Land Miscellaneous Application 115 of 2017) [2017] KEELC 1268 (KLR)

Environment and Land Court
12 October 2017
906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land dispute filed in the wrong Kenyan court cannot simply be moved to the right one — it must be filed afresh.

What this practically means

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Executive summary

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The applicant, through her advocate Beatrice Njeri Njagua, moved the Environment and Land Court at Nakuru by Notice of Motion dated 31 March 2017, under sections 1A, 1B, 3A and 18(1)(b)(i) of the Civil Procedure Act, seeking the transfer of Nakuru CMCC No. 46 of 2014 (Brendan Kimani Kamanu v Gichemi Njuguna & 2 others) to the ELC. The suit, filed in the Chief Magistrate's Court on 23 January 2014, sought a declaration of ownership of twelve parcels of land known as Bahati/Kabatini Block 1/11742 to 1/11753. The respondents did not file a formal response but counsel confirmed they did not oppose the application. The court held that under Article 162(2)(b) and the Environment and Land Court Act (in force 30 August 2011), and reinforced by sections 101 of the Land Registration Act and 150 of the Land Act, subordinate courts had no jurisdiction over title-to-land disputes in 2014. Applying settled authority that a suit filed in a court without jurisdiction cannot be transferred, and that parties cannot confer jurisdiction by consent, Ohungo J dismissed the motion and made no order on costs.

Key legal issues

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01

Whether subordinate courts had jurisdiction over title-to-land disputes in 2014

Holding

They did not; jurisdiction was vested exclusively in the Environment and Land Court by Article 162(2)(b), the ELC Act, the Land Registration Act and the Land Act.

Reasoning

Parliament, acting under Article 162(2)(b), enacted the Environment and Land Court Act which came into force on 30 August 2011, with section 13(1) conferring jurisdiction over title to land. The Land Registration Act and the Land Act, both operative from 2 May 2012, define 'Court' as the ELC and vest exclusive jurisdiction in it. Accordingly, when the suit was filed on 23 January 2014, the magistrate's court had no jurisdiction over title to land.

p. 2
02

Whether a suit filed without jurisdiction can be transferred

Holding

No; the court has no jurisdiction to transfer a suit filed in a court lacking jurisdiction, and consent cannot cure this.

Reasoning

Following Kagenyi v Misiramo and Mendonca v Rodrigues as stated by Ringera J in Omwata Omwoyo, an order for transfer cannot be made unless the suit was first brought to a court with jurisdiction. Jurisdiction is a creature of statute and cannot be conferred by consent of parties, even where the transfer is unopposed.

p. 2

Legal principles established

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  • A suit filed in a court without jurisdiction cannot be transferred; there is no jurisdiction to transfer such a suit, and parties cannot confer jurisdiction by consent.
  • The interests of justice cannot override want of jurisdiction.

Court orders

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  1. 1.Notice of Motion dated 31st March 2017 dismissed
  2. 2.No order on costs
Jurisdiction invoked
Sections 1A, 1B, 3A and 18(1)(b)(i) of the Civil Procedure Act; Articles 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court 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, "Brendan Kimani Kamanu v Elizabeth Wanjiru Gichemi & Paul Mwangi Gichemi (Environment and Land Miscellaneous Application 115 of 2017) [2017] KEELC 1268 (KLR)", Case Analysis (2017). Notice of Motion dated 31st March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1268/eng@2017-10-12

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