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ELCStruck Out· [2018] KEELC 1962 (KLR)

Joel Kipkosgei v Thomas Kiprop [2018] KEELC 1962 (KLR)

Environment and Land Court of Kenya
10 September 2018
1,370 words in judgment
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The bottom line

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A Kenyan land case filed in the wrong county court was struck out entirely, with costs, because filing in the wrong location cannot be fixed by transfer.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho, delivered by J.M Onyango J on 10 September 2018, determines a preliminary objection dated 12 February 2018 in a land suit. The defendant objected on two grounds: that the Kericho court lacked geographical jurisdiction under section 15 of the Civil Procedure Act, and that the suit was time barred under section 7 of the Limitation of Actions Act. The plaint alleged a cause of action arising in 1976 concerning land situated at Nandi Hills. The court held that sections 12 and 15 of the Civil Procedure Act require suits relating to immovable property to be filed where the property is situated, and since the suit land falls under the Eldoret Environment and Land Court, the Kericho court had no jurisdiction. On limitation, the court noted the 1976 accrual date but observed that the pleadings were poorly drafted and made no definitive finding, deciding instead on jurisdiction alone. Guided by the Owners of Motor Vessel Lillian 'S', Kagenyi v Musiramo, Rob De Jong and the Supreme Court's decision in R v Karisa Chengo, the court held that a suit filed without jurisdiction is a nullity, void ab initio and incapable of transfer to a competent court. It expressly declined to follow Kasango J's contrary holding in Wycliffe Mwangaza Kihugwa v Grainbulk Handlers Limited. The preliminary objection was allowed, the suit struck out, and costs awarded to the defendant.

Key legal issues

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01

Whether the court has territorial/geographical jurisdiction over land situated at Nandi Hills

Holding

The court has no jurisdiction because the suit land falls within the Eldoret Environment and Land Court

Reasoning

Sections 12 and 15 of the Civil Procedure Act require suits relating to immovable property to be instituted in the court within whose local limits the property is situated. The suit land is at Nandi Hills, which is under the Eldoret Environment and Land Court, not Kericho. The court therefore lacked jurisdiction to entertain the matter.

p. 2
02

Whether a suit filed in a court without jurisdiction can be transferred to a competent court

Holding

No - the suit is a nullity and incapable of transfer; it must be struck out

Reasoning

Relying on Kagenyi v Musiramo and Rob De Jong, the court held that transfer cannot be founded on a suit filed in a court without jurisdiction, as such a suit is a nullity. The court declined to follow Kasango J's contrary decision in Wycliffe Mwangaza Kihugwa v Grainbulk Handlers, holding that jurisdiction cannot be of no consequence. A void suit cannot sustain transfer or any other proceedings.

p. 2
03

Whether the suit is time barred under section 7 of the Limitation of Actions Act

Holding

The court found the cause of action arose in 1976 but did not make a definitive finding on limitation, resting its decision on jurisdiction

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. The plaint averred that the cause of action arose in 1976, which would place the claim well beyond the limitation period, but the pleadings were poorly drafted and it was unclear whether the wrongs were ongoing. The court's determination turned on jurisdiction instead.

p. 2

Legal principles established

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  • Jurisdiction is foundational; a court without jurisdiction must stop proceedings immediately
  • Lack of jurisdiction renders proceedings void, not merely voidable, and they cannot be transferred

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Civil Procedure Actsection 15
  • Civil Procedure Actsection 12
  • Civil Procedure Actsection 18
  • Limitation of Actions Act (Cap 22)section 7
  • Constitution of Kenyanot specified

Cases cited (7)

  • The Owners of Motor Vessel Lillian "S" V Caltex Oil Kenya Limited
    1989 KLR 1653
  • Kagenyi V Musiramo & Another
    1968 EA 43
  • Rob De Jong & Another V Charles Mureithi Wachira
    (2012) eKLR
  • Joseph Muiruri V Godfrey Gikundi Anjuri
    2012 eKLR
  • Wycliffe Mwangaza Kihugwa V Grainbulk Handlers Limited
    (2014) eKLR
  • R V Karisa Chengo and 2 Others
    (2017) eKLR
  • Benjamin Leonard in Macfoy United Africa Company Limited
    1962 AC 152
Jurisdiction invoked
Sections 15 and 12 of the Civil Procedure Act and section 7 of the Limitation of Actions Act (Cap 22); objection to territorial jurisdiction and limitation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joel Kipkosgei v Thomas Kiprop [2018] KEELC 1962 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1962/eng@2018-09-10

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