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ELCAllowedKericho ELC Miscellaneous Application (Notice of Motion dated 4th August 2017)· [2018] KEELC 4582 (KLR)

Cheptoo Evaline v Flamingo Company Limited & 2 others [2018] KEELC 4582 (KLR)

Environment and Land Court
25 January 2018
JOJ. M Onyango
729 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can rescue land suits filed in the wrong court, transferring them rather than striking them out.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho dealt with a Notice of Motion dated 4th August 2017 in which the Applicant sought the transfer of Kericho CMCC No. 79 of 2015, a land suit, from the Chief Magistrate's Court to the Environment and Land Court for hearing and final disposal. The Applicant argued that when the suit was filed in 2015 there was no Environment and Land Court at Kericho, that magistrates' courts had jurisdiction over land matters under Articles 23(3) and 169 of the Constitution, and relied on the Court of Appeal decision in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 Others (Civil Appeal No. 287 of 2016) holding that magistrates' courts can hear land matters. The 3rd Respondent, the County Government of Kericho, through the Replying Affidavit of Gideon Mutai, opposed the application as misconceived, contending that a suit filed in a court without jurisdiction is null and void ab initio and that a suit cannot be transferred from a court that never had jurisdiction. The court framed the sole issue as whether it could transfer to itself a suit filed in a court lacking jurisdiction. It acknowledged the authorities establishing that transfer is only possible from a court with jurisdiction, but held that in view of the recent change in the law conferring land jurisdiction on magistrates' courts, and applying Article 159(2)(d), it would exercise its discretion to transfer the suit. It directed the transfer and awarded costs in the cause.

Key legal issues

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Whether the ELC can transfer to itself a suit filed in a magistrates' court that lacked jurisdiction at the time of filing

Holding

Although the suit was filed when the lower court had no jurisdiction, the court exercised its discretion under Article 159(2)(d) and directed the transfer in the wider interest of justice, noting the recent change in the law on magistrates' jurisdiction over land matters.

Reasoning

The court acknowledged the general principle, restated in James Davis Njuguna, Omwoyo v African Highlands and John Kibet Rotich, that transfer is only possible where the originating court had jurisdiction. However, following the recent Court of Appeal decision in Civil Appeal No. 287 of 2016 (Law Society of Kenya Nairobi Branch v Malindi Law Society), magistrates' courts are now clothed with jurisdiction over land matters. Relying on Article 159(2)(d), the court refused to let a procedural irregularity defeat substantive justice and transferred the suit.

p. 2

Legal principles established

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  • A court can only transfer a case that was filed in the first instance in a court that had jurisdiction to try it, but the discretion under Article 159(2)(d) may be exercised where jurisdictional defects have since been cured.

Court orders

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  1. 1.Kericho CMCC No. 79 of 2015 be transferred to this court for hearing and determination
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 169(1)(a) and 169(2)
  • Environment and Land Court ActSections 19(2)(3)(i)

Cases cited (4)

  • Law Society of Kenya Nairobi Branch Vs Malindi Law Society & 6 Others
    Civil Appeal No. 287 of 2016 Nairobi, 2017 eKLR
  • James Davis Njuguna V. James Chacha (sued as Chairman Parklands Sports Club & 3 Others
    Nbi HCCC No. 198 of 2012
  • Omwoyo Vs. African Highlands & Produce Ltd
    2002 KLR 698
  • John Kibet Rotich V Elijah Kibet Siele
    Kericho ELC Misc. Application No. 56 of 2016
Jurisdiction invoked
Sections 19(2)(3)(i) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution

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, "Cheptoo Evaline v Flamingo Company Limited & 2 others [2018] KEELC 4582 (KLR)", Case Analysis (2018). Kericho ELC Miscellaneous Application (Notice of Motion dated 4th August 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4582/eng@2018-01-25

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