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ELCPartially AllowedNotice of Motion dated 8th August 2018 (Bungoma High Court)· [2019] KEELC 3142 (KLR)

Shaiwaz Sadrudin Jiwa v Abdillahi Hassan Abdirihaman [2019] KEELC 3142 (KLR)

High Court of Kenya
30 May 2019
BOBoaz N. Olao
1,765 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court ruled that a case filed in the wrong court over land valued at Kshs 64 million should be transferred, not dismissed.

What this practically means

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Executive summary

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The plaintiff moved the High Court at Bungoma by Notice of Motion dated 8th August 2018 under Section 18 of the Civil Procedure Act seeking transfer of Bungoma CMCC No. 269 of 2018 to the High Court. The plaintiff, the registered proprietor of land parcels Malakisi/Township/375, 413 and 419, had sued the defendant in the Chief Magistrate's Court for injunction and damages after an alleged invasion of the land. The defendant's defence challenged the subordinate court's pecuniary jurisdiction and annexed a valuation report by Chrisca Real Estates valuing the suit land at Kshs. 64,000,000. The defendant opposed the transfer, arguing Section 18 does not apply where the lower court lacks jurisdiction and that the plaintiff's suit was an abusive attempt to defeat his own High Court suit, HCCC No. 2 of 2018. The court held that jurisdiction is assessed solely from the pleadings; the plaint disclosed nothing exceeding the Chief Magistrate's jurisdiction, and it was only the defence and valuation report that revealed the value, making the suit one filed in the 'wrong' court by subsequent events. Applying the overriding objective and following Justice Waweru's reasoning in Grace Thogori Komo, the court held that Kagenyi v Musiramo is no longer persuasive under the 2010 Constitution, and that transferring the suit serves justice without prejudice to the defendant. The court allowed the application, ordered the transfer of Bungoma CMCC No. 269 of 2018 to the High Court, and made no order as to costs.

Key legal issues

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Whether the transfer application under Section 18 CPA was merited given the valuation showing the suit exceeded the Chief Magistrate's pecuniary jurisdiction

Holding

The application was allowed; the suit, which became one beyond the subordinate court's jurisdiction only upon the defence and valuation report, was properly transferable to the High Court.

Reasoning

The court examined only the pleadings: the plaint disclosed nothing suggesting the suit land's value exceeded the Chief Magistrate's jurisdiction. Only the defendant's defence and valuation report revealed a value of Kshs 64,000,000, placing the dispute beyond the subordinate court. Subsequent events changing the status of the dispute do not render the suit improperly filed. Consistent with the overriding objective and the Grace Thogori Komo reasoning, transfer serves justice, and Kagenyi v Musiramo is no longer persuasive under the 2010 Constitution.

p. 2

Legal principles established

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  • In determining jurisdiction a court can only look at the pleadings as filed by the parties and no more.
  • Where a suit is filed in a court with jurisdiction and subsequent events change the value of the subject matter, it is not proper to claim the suit was filed without jurisdiction.
  • A suit filed in the wrong court should be transferred to the appropriate court in the interest of justice, and Kagenyi v Musiramo is no longer persuasive after the 2010 Constitution.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 8th August 2018 is allowed (transfer of Bungoma CMCC No. 269 of 2018 to the High Court)
  2. 2.No order as to costs
Jurisdiction invoked
Section 18(1) 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, "Shaiwaz Sadrudin Jiwa v Abdillahi Hassan Abdirihaman [2019] KEELC 3142 (KLR)", Case Analysis (2019). Notice of Motion dated 8th August 2018 (Bungoma High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3142/eng@2019-05-30

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