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ELCDismissedMiscellaneous Application - Notice of Motion dated 17th May 2016 (arising from Nakuru CMCC No. 590 of 2014)· [2017] KEELC 3181 (KLR)

David Kitur Langat & another v Mabwai Mulay Koskei & 2 others [2017] KEELC 3181 (KLR)

High Court of Kenya
31 March 2017
DOD. O. Ohungo
1,340 words in judgment
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The bottom line

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A Kenyan court confirmed it cannot transfer a land case filed in a magistrate's court that had no jurisdiction, even though the litigants were unrepresented.

What this practically means

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Executive summary

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The applicants, who had filed Nakuru CMCC No. 590 of 2014 on 25th June 2014 as plaintiffs against the respondents as defendants, sought by Notice of Motion dated 17th May 2016 to transfer that suit to the High Court. The plaint sought an injunction restraining the defendants from dealing with land known as MITI MINGI/MBARUK BLOCK 3/1392 (BARUT) and cancellation of title to a subdivided plot, MITI MINGI BLOCK 7485. The applicants conceded they had filed the suit in a court without jurisdiction, arguing that as unrepresented litigants their mistake should be excused under Article 159(d) of the Constitution. The 1st respondent opposed, contending the suit could not be transferred from a court lacking jurisdiction. Holding that the dispute concerned title to, use and occupation of land, the court found that under Article 162(2)(b) and sections 4 and 13(1) of the Environment and Land Court Act, such disputes fall to the Environment and Land Court, which was operational when the suit was filed; the magistrate's court therefore had no jurisdiction. Relying on the Omwoyo decision, which drew on Kagenyi v Misiramo and Mendonca v Rodrigues, the court held that a suit filed in a court without jurisdiction cannot be transferred, and that the law applies uniformly to all litigants, including those acting in person. The application was dismissed with costs on 31st March 2017.

Key legal issues

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01

Whether the Chief Magistrate's Court had jurisdiction over the dispute

Holding

The magistrate's court had no jurisdiction because the suit concerned title to, use and occupation of land, matters reserved to the Environment and Land Court under Article 162(2)(b) and section 13(1) of the ELC Act, which was already operational when the suit was filed on 25th June 2014.

Reasoning

The ELC Act came into force on 30th August 2011 and the court commenced operations on 5th November 2012. The suit, filed 25th June 2014, concerned title, use and occupation of land (MITI MINGI/MBARUK BLOCK 3/1392 (BARUT) and a subdivided plot). Under sections 2 of the Land Registration Act and the Land Act, 'Court' means the Environment and Land Court. The magistrate's court therefore lacked jurisdiction.

p. 3
02

Whether the applicants' unrepresented status should excuse filing in a court without jurisdiction

Holding

No. The court cannot relax the settled rules to transfer a suit filed without jurisdiction, even where the litigant was acting in person.

Reasoning

Citing the Omwoyo decision (which in turn relied on Kagenyi v Misiramo and Mendonca v Rodrigues), the court held that the High Court cannot exercise its discretion to transfer a suit first filed in a court lacking jurisdiction. The interests of justice are served by upholding the law, not bending it, and litigants cannot be subjected to different standards on jurisdiction.

p. 3

Legal principles established

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  • Jurisdiction cannot be conferred by consent, judicial innovation or accommodation, and a suit filed in a court without jurisdiction cannot be transferred to a competent court.
  • The same standards on jurisdiction apply to all litigants, including those who were unrepresented when filing suit.

Court orders

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  1. 1.The applicants' Notice of Motion dated 17th May 2016 seeking transfer of NAKURU CMCC No. 590 of 2014 to the High Court was dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b); Article 159(d)
  • Environment and Land Court Act, No. 19 of 2011Sections 4 and 13(1)
  • Land Registration Act, No. 3 of 2012Section 2 (definition of 'Court'); Section 109
  • Land Act, No. 6 of 2012Section 2 (definition of 'Court')
  • Registered Land Act (Repealed)Repealed by section 109 of the Land Registration Act
  • Civil Procedure ActSection 18 (referred to in quoted authorities)

Cases cited (3)

  • Charles Omwata Omwoyo v African Highlands & Produce Co Ltd
    [2002] eKLR
  • Kagenyi v Misiramo & Another
    [1968] E.A. 48
  • Mendonca v Rodrigues
    [1906-1908] 2 KLR 51
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act, No. 19 of 2011 (sections 4 and 13(1)); Article 159(d) invoked by applicants

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, "David Kitur Langat & another v Mabwai Mulay Koskei & 2 others [2017] KEELC 3181 (KLR)", Case Analysis (2017). Miscellaneous Application - Notice of Motion dated 17th May 2016 (arising from Nakuru CMCC No. 590 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3181/eng@2017-03-31

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