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ELCDismissedBusia HC (JR/ELC) — Notice of Motion dated 22/11/2016 (arising out of Busia CMCC No. 151 of 2016)· [2017] KEELC 2446 (KLR)

Shabban Wandera v Director General Agriculture, Fisheries & Food Authority & another [2017] KEELC 2446 (KLR)

High Court of Kenya
13 July 2017
1,039 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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This was a ruling on a Notice of Motion dated 22 November 2016 by the Applicant, Shabban Wandera, seeking under Order 51 of the Civil Procedure Rules and Sections 3, 3A and 63(e) of the Civil Procedure Act an order transferring Busia CMCC No. 151 of 2016 from the magistrates' court to the High Court for consolidation with Busia HC JR ELC No. 11 of 2015, plus costs. The grounds were that the suit concerned land whose value exceeded the Lower Court's jurisdiction and that the Lower Court could not handle the issues raised. The Respondents opposed, arguing the application was an abuse of process designed to circumvent their pending application dated 31 May 2016 to strike out the Lower Court suit for want of jurisdiction, and that consolidation of an ordinary suit with a judicial review matter was impossible. In submissions, the Applicant relied on the Malindi Law Society decision; the Respondents showed that decision had been stayed by the Court of Appeal in Civil Applications Nos. 64 and 65 of 2016, cited Kagenyi v Musiramo via Hottensia Wanjiru for the rule that a suit filed without jurisdiction cannot be transferred, and relied on Equity Bank v Mutuku, where the Court of Appeal faulted the High Court for entertaining transfer while a preliminary objection was pending below. The court agreed with the Respondents on all three points and dismissed the application with costs, expressly declining to determine whether transfer is possible for a suit filed in a court without jurisdiction, leaving that to the pending strike-out application.

Key legal issues

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01

Effect of a stay on reliance upon a precedent decision

Holding

The Malindi Law Society decision, having been stayed by the Court of Appeal, could not be relied upon by the Applicant to establish the jurisdiction of the High Court

Reasoning

The Applicant grounded the transfer application on the Malindi decision, contending it had not been varied or set aside. The Respondents showed it had been stayed in Civil Applications Nos. 64 and 65 of 2016. The court accepted that a stayed decision is not available for use, making the Applicant's reliance wrongful.

p. 2
02

Transfer application pending a strike-out application in the Lower Court

Holding

A party cannot evade a pending application to strike out its suit for want of jurisdiction by seeking transfer of the suit; the strike-out must first be addressed in the Lower Court

Reasoning

Following Equity Bank Ltd v Bruce Mutie Mutuku, the court held that where a preliminary objection or strike-out application raising jurisdiction is pending in the Lower Court, the High Court should not entertain a transfer application, since the strike-out has the potential to terminate the suit entirely.

p. 2
03

Consolidation of an ordinary civil suit with a Judicial Review matter

Holding

An ordinary civil suit governed by the Civil Procedure Act and Rules cannot be consolidated with a Judicial Review application, which is sui generis and neither civil nor criminal

Reasoning

The court reasoned that Judicial Review is a sui generis jurisdiction with a different procedural approach and different applicable law from an ordinary suit. The manner of hearing the two differs, and consolidation would be like mixing water and oil — not possible.

p. 2

Legal principles established

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  • A decision that has been stayed cannot be relied upon by a party while the stay is in force
  • Where an application to strike out a suit for want of jurisdiction is pending in the Lower Court, a party cannot circumvent it by seeking transfer of the suit to the High Court
  • A Judicial Review matter is sui generis and cannot be consolidated with an ordinary civil suit, as the two have different procedural approaches and governing law

Court orders

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  1. 1.The Notice of Motion dated 22/11/2016 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rules 1, 3, 4, 8, 10(1)
  • Civil Procedure ActSections 3, 3A, 63(e)

Cases cited (4)

  • Malindi Law Society vs The Hon. Attorney General and 5 others
    Petition No. 3 of 2016, Malindi
  • Hottensia Wanjiru vs Meshack Ngomo
    (2012) eKLR
  • Kagenyi vs Musiramo and Anor
    [1986] EA 43
  • Equity Bank Limited vs Bruce Mutie Mutuku T/A Diani Tour & Travel
    Civil Appeal No. 13 of 2016
Jurisdiction invoked
Order 51 Rules 1, 3, 4, 8, 10(1) of the Civil Procedure Rules and Sections 3, 3A and 63(e) of the Civil Procedure 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, "Shabban Wandera v Director General Agriculture, Fisheries & Food Authority & another [2017] KEELC 2446 (KLR)", Case Analysis (2017). Busia HC (JR/ELC) — Notice of Motion dated 22/11/2016 (arising out of Busia CMCC No. 151 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2446/eng@2017-07-13

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