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ELCDismissedMiscellaneous Suit (application dated 4.8.2020), Meru ELC· [2020] KEELC 79 (KLR)

Zakayo Kamencu v Jennifer Kenario Ikiao & another [2020] KEELC 79 (KLR)

Environment and Land Court
3 November 2020
LMLucy N. Mbugua
1,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court dismissed a man's bid to move his land case, ruling that forum shopping and delaying tactics abuse Kenya's court process.

What this practically means

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Executive summary

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The applicant filed a miscellaneous application dated 4.8.2020 in the Environment and Land Court at Meru seeking stay of proceedings in Tigania PMCC No. 17 of 2020, transfer of that suit to the ELC, and stay of a contempt ruling delivered on 29.7.2020 by Hon. Sogomo PM. He contended that the suit plots at Kianjai market were valued at approximately Ksh. 15 million, exceeding the magistrate's pecuniary jurisdiction under section 7(1)(c) of the Magistrates' Courts Act, and that he would suffer irreparable harm. The respondents, who had sued the applicant in the Tigania matter and obtained injunctive orders and a contempt ruling in their favour, opposed the application through the affidavit of the 1st respondent, Jennifer Kanario Ikiao. They pointed out that the applicant had already raised the jurisdictional challenge by preliminary objection in the trial court, which was dismissed by ruling on 23.9.2020, and that he was forum shopping. A later application dated 22.10.2020 seeking interim stay pending the ruling was marked as spent, the court invoking Article 159(2) of the Constitution and sections 1A and 1B of the Civil Procedure Act to determine the substantive application at once. The court held that transfer under section 18 of the Civil Procedure Act is only available for suits filed before competent courts, that the jurisdictional issue had already been determined by the trial court and could only be revisited on appeal or review, and that the applicant, having moved only after the contempt ruling, was forum shopping and abusing court process. The miscellaneous suit was dismissed with costs to the respondent. Judgment was delivered electronically pursuant to COVID-19 practice directions, with deemed waiver of Order 21 rule 1.

Key legal issues

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01

Transfer of suit under section 18 of the Civil Procedure Act

Holding

Transfer could not be ordered because the applicant's own position was that the Tigania court lacked jurisdiction, meaning no competent suit existed to transfer.

Reasoning

Section 18 empowers the High Court (ELC) to order withdrawal and transfer of suits pending in subordinate courts. However, the power presupposes that the suit was filed before a court competent to hear it. If the trial court lacked jurisdiction, there is no competent suit capable of transfer and section 18 cannot be invoked. The applicant's valuation-based jurisdictional objection, if correct, would defeat his own transfer application.

p. 2
02

Re-litigation of jurisdiction already determined by the trial court

Holding

The court declined to re-determine the jurisdiction issue already dismissed by the trial court on 23.9.2020.

Reasoning

The applicant had filed a preliminary objection in the Tigania court on the same section 7(1)(c) Magistrates' Courts Act ground, which was dismissed by ruling on 23.9.2020. The same argument could not be entertained by the ELC unless the trial court's ruling was challenged on appeal or review. Re-opening the issue would circumvent that ruling.

p. 2
03

Abuse of process / forum shopping

Holding

The court found the applicant was forum shopping and abusing court process, having moved to the ELC only after the contempt ruling.

Reasoning

The applicant approached the ELC only after the ruling citing him for contempt was delivered on 29.7.2020. This timing showed the application was aimed at scuttling proceedings before the trial court. The court agreed with the respondents that this constituted forum shopping amounting to abuse of court process, justifying dismissal with costs.

p. 2

Legal principles established

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  • A court exercising transfer jurisdiction under section 18 can only transfer a suit which was in the first instance filed before a competent court.
  • A litigant cannot re-litigate a jurisdictional issue already determined by the trial court except by appeal or review.
  • Forum shopping amounts to an abuse of court process.

Court orders

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  1. 1.The miscellaneous suit (application dated 4.8.2020) is dismissed
  2. 2.Costs of the suit awarded to the respondent
  3. 3.The application filed on 22.10.2020 is marked as spent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure ActSections 1A, 1B and 18
  • Magistrates' Courts Act, 2015Section 7(1)(c)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Simon Njogu Kariithi & another v Cleti Kembio Kimaiyo
    [2015] eKLR
On appeal from
null
null
Jurisdiction invoked
Section 18 of the Civil Procedure Act; Article 159(2) of the Constitution; Sections 1A and 1B 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, "Zakayo Kamencu v Jennifer Kenario Ikiao & another [2020] KEELC 79 (KLR)", Case Analysis (2020). Miscellaneous Suit (application dated 4.8.2020), Meru ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/79/eng@2020-11-03

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