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ELCDismissedMiscellaneous Application (Nakuru High Court) arising from Nakuru CMCC No. 546 of 2014· [2017] KEELC 2404 (KLR)

Joseph Njuguna Kimani v John Kimani & 4 others [2017] KEELC 2404 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction)
23 June 2017
DOD. O. Ohungo
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant moved the High Court at Nakuru by notice of motion dated 17th August 2016 seeking an order transferring Nakuru CMCC No. 546 of 2014 to the Nakuru High Court. The suit in the magistrate's court sought a permanent injunction and eviction orders concerning parcel L.R. No. 27601/9, a dispute over the use and occupation of land. The respondents filed a preliminary objection dated 12th April 2017 contending that the court lacked jurisdiction to transfer a suit filed in a court that itself had no jurisdiction, and that such a suit was a nullity. Parties disposed of the objection by written submissions. The court, applying Article 162(2)(b) of the Constitution, Section 13(1) of the Environment and Land Court Act, and Sections 101 of the Land Registration Act and 150 of the Land Act, held that in 2014 subordinate courts had no jurisdiction over disputes concerning title to, use and occupation of land, jurisdiction being exclusively vested in the Environment and Land Court. Citing Kagenyi v Misiramo and Mendonca v Rodrigues as adopted by Ringera J in Charles Omwata Omwoyo v African Highlands & Produce Co Ltd, the court held that a suit filed in a court without jurisdiction cannot be transferred; the interests of justice cannot justify the exercise of jurisdiction a court does not have. The preliminary objection was upheld, the notice of motion dismissed with costs to the respondents, dated 23rd June 2017.

Key legal issues

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01

Jurisdiction to transfer a suit filed in a court lacking jurisdiction

Holding

The High Court (ELC) lacks jurisdiction to transfer a suit filed in a subordinate court that had no jurisdiction to try it; such a suit is a nullity.

Reasoning

Relying on Kagenyi v Misiramo and Mendonca v Rodrigues as adopted by Ringera J in Omwata Omwoyo, the court held that an order for transfer can only be made where the suit was first brought to a court with jurisdiction to try it. In 2014, disputes on use, occupation and title to land were exclusively vested in the Environment and Land Court, so the magistrate's court had no jurisdiction and the suit could not be transferred.

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02

Exclusive jurisdiction of the Environment and Land Court over land disputes

Holding

As at 2014, disputes concerning title to, use and occupation of land fell exclusively within the jurisdiction of the Environment and Land Court, excluding subordinate courts.

Reasoning

Section 13(1) of the Environment and Land Court Act, pursuant to Article 162(2)(b) of the Constitution, confers jurisdiction over environment and land disputes on the ELC. Sections 101 of the Land Registration Act and 150 of the Land Act, in force at the time of filing, vested exclusive jurisdiction over land disputes under those Acts in the ELC, so the subordinate court had no jurisdiction.

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Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to another court; there is no jurisdiction to transfer such a suit
  • The interests of justice cannot justify a court exercising jurisdiction it does not have

Court orders

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  1. 1.The preliminary objection dated 12th April 2017 is upheld
  2. 2.Notice of Motion dated 17th August 2016 is dismissed with costs to the respondents
Jurisdiction invoked
Articles 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act No. 19 of 2011; Section 18 of the Civil Procedure Act on transfer of suits

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, "Joseph Njuguna Kimani v John Kimani & 4 others [2017] KEELC 2404 (KLR)", Case Analysis (2017). Miscellaneous Application (Nakuru High Court) arising from Nakuru CMCC No. 546 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2404/eng@2017-06-23

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