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ELCOtherELC No 334 of 2019 (Formerly High Court Civil Suit No 2364 of 1999 (OS))· [2020] KEELC 170 (KLR)

Josephat Thuo Githachuri v Lucy Njoki Gaitho and Daniel Kibue Gaitho & another; Gladys Nduta Mbugua(Intended Intersted Party) [2020] KEELC 170 (KLR)

Environment and Land Court
16 December 2020
BEB M Eboso
647 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court file (formerly High Court Civil Suit No 2364 of 1999 (OS)) was transferred from the Nairobi High Court to the Thika Environment and Land Court by Njuguna J by order of 15/10/2019, yet it was rerouted to the Nairobi Environment and Land Court and listed before Eboso J. When the parties appeared virtually on 16/11/2020, counsel for the intended interested party (Maina) and for the plaintiff (Muhuni) asked the court to reserve a date for ruling on the intended interested party's notice of motion dated 14/2/2019, which sought to set aside a judgment rendered by Rawal J in October 2007; the application had been canvassed before Njuguna J by written submissions and awaited a ruling. Eboso J, while preparing to write the ruling, discovered the transfer order directing the file to Thika. Both advocates had been present when that order was made but concealed it from the court. The judge held that a transfer order is not a minor procedural error, that the file is a Thika ELC file, and that it would be highly irregular for a Nairobi ELC judge to deal with it or casually disregard the transfer order. The court expunged and/or vacated all erroneous Nairobi proceedings, including the order reserving the ruling date, directed the Registry to convey the file to Thika, and left the parties free to make any necessary applications there. No costs order was made.

Key legal issues

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01

Whether a judge of the Nairobi Environment and Land Court could properly handle a File ordered transferred to the Thika Environment and Land Court

Holding

No. The transfer order of the High Court bound the file's venue, and dealing with the file in Nairobi was irregular.

Reasoning

The court examined the transfer order made by Njuguna J on 15/10/2019 directing the matter to the ELC Court at Thika. There was no subsequent order redirecting the file to Nairobi. The judge found the file's rerouting to Nairobi and its administrative allocation unexplained, and held that dealing with the file in Nairobi would be highly irregular.

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02

What remedies follow from proceedings taken without jurisdiction over the file

Holding

The erroneous proceedings, including the order reserving a ruling date, were expunged and the file conveyed to Thika.

Reasoning

Having found that the Nairobi court had no legitimate custody of the file, the court vacated the proceedings taken there, directed the registry to transfer the file to Thika as originally ordered, and preserved the parties' liberty to make any necessary applications before the proper court.

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03

Conduct of counsel in concealing the transfer order from the court

Holding

The court found that both advocates knew of the Thika transfer order but concealed it when the matter came before it.

Reasoning

The court observed that both advocates appeared before it on 16/11/2020 and asked for a ruling date without disclosing the transfer order, despite having been present when it was made. The court discovered the concealment while preparing to write the ruling. No sanction was expressly imposed beyond expunging the proceedings.

p. 2

Legal principles established

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  • A transfer order is not a minor procedural matter that a court before which a file erroneously lands may disregard; the file must go where the High Court directed

Court orders

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  1. 1.The erroneous proceedings taken in the File at Nairobi Environment and Land Court, including the order reserving a ruling date for the notice of motion dated 14/2/2019, are expunged from the record and/or vacated
  2. 2.The Court Registry is directed to convey the File to Thika Environment and Land Court as ordered by the High Court on 15/10/2019
  3. 3.Parties are at liberty to make any necessary application before the Thika Environment and Land Court

Authorities

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Legislation

  • Environment and Land Court Actnull
Jurisdiction invoked
Environment and Land Court Act - matter transferred from the High Court pursuant to Article 162(2) framework; transfer order of Njuguna J dated 15/10/2019

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, "Josephat Thuo Githachuri v Lucy Njoki Gaitho and Daniel Kibue Gaitho & another; Gladys Nduta Mbugua(Intended Intersted Party) [2020] KEELC 170 (KLR)", Case Analysis (2020). ELC No 334 of 2019 (Formerly High Court Civil Suit No 2364 of 1999 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/170/eng@2020-12-16

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