Brendan Kimani Kamanu v Elizabeth Wanjiru Gichemi & Paul Mwangi Gichemi (Environment and Land Miscellaneous Application 115 of 2017) [2017] KEELC 1268 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether subordinate courts had jurisdiction over title-to-land disputes in 2014
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.
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.
Whether a suit filed without jurisdiction can be transferred
No; the court has no jurisdiction to transfer a suit filed in a court lacking jurisdiction, and consent cannot cure this.
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.
Legal principles established
#- 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
#- 1.Notice of Motion dated 31st March 2017 dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.