Cordisons International (K) Limited v National Land Commission & 4 others [2017] KEELC 1988 (KLR)
The bottom line
#A Kenyan court struck out Cordisons International's land dispute because it was filed in the wrong court, confirming such cases cannot simply be moved elsewhere.
What this practically means
#Executive summary
#Key legal issues
#Whether the 39 Interested/Afflicted Parties were proper parties entitled to audience at the leave stage
They were not proper parties; they had not demonstrated how the orders sought would affect them.
Order 53 rule 3 confines service at leave stage to persons directly affected, though the court retains discretion to join others. A party seeking to join itself must show how the proceedings affect it. Relying on Macadamia Nuts Dealers v Horticultural Crops Development Authority, the court held the 39 individuals had walked into the proceedings without demonstrating any interest, so the court lacked material to find they deserved audience at that stage.
Whether the question of jurisdiction was res judicata following Aburili J's transfer order
It was not; the transfer was made for further directions and did not amount to a final and conclusive determination of jurisdiction.
Applying Section 7 of the Civil Procedure Act, the court examined the record of 30th January 2017 and the brief ruling. The Learned Judge merely forwarded the file to Malindi ELC for further directions and consideration, expressly declining conservatory orders, and never delved into the Attorney General's preliminary objection on jurisdiction. Hence neither res judicata nor functus officio arose, and the objection could be considered by this court.
Whether the High Court had jurisdiction over the suit and the effect of its transfer to the ELC
The High Court lacked jurisdiction over land use planning and title disputes under Article 165(5)(b); the suit filed there was a nullity incapable of transfer.
Article 162(2)(b) and Section 13 of the Environment and Land Court Act vest disputes on land use planning and title in the ELC exclusively. Citing Kagenyi v Musiramo, Mendonca v Rodriques and Equity Bank v Bruce Mutie Mutuku, the court held that a court cannot transfer a suit filed in a forum without jurisdiction; such a suit is void ab initio and incurably bad, per Macfoy v United Africa Co. The USIU harmonisation approach was distinguished as a transitional 2012 position.
Legal principles established
#- A suit filed in a court without jurisdiction is a nullity and cannot be cured by transfer to a competent court.
- Jurisdiction is everything; a court without jurisdiction has no power to take any step in the proceedings.
- Res judicata requires a final and conclusive determination by a competent court; a transfer for directions is not such a determination.
Court orders
#- 1.The application dated 18th January 2017 is struck out with costs
- Jurisdiction invoked
- Articles 162(2)(b) and 165(5) of the Constitution; Environment and Land Court Act, Section 13
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cordisons International (K) Limited v National Land Commission & 4 others [2017] KEELC 1988 (KLR)", Case Analysis (2017). Miscellaneous Application No. 15 of 2017 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1988/eng@2017-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.