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ELCDismissedELC MSC APPL NO 7 OF 2020· [2020] KEELC 224 (KLR)

Nicholas Kihungi Kimari & 3 others v Kimari Maina & 3 others [2020] KEELC 224 (KLR)

Environment and Land Court
3 December 2020
JKJ. G. Kemei
1,320 words in judgment
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The bottom line

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A Kenyan court refused to move a land case to Murang'a because the applicants gave no good reason, confirming transfers must be justified, not automatic.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court at Murang'a by Notice of Motion under section 18(b) of the Civil Procedure Act seeking withdrawal of SPM ELC No 12 of 2019, Kangema and its transfer to the ELC for hearing and disposal. The subject lands were said to overlap with Matrimonial Cause No 4 of 2016 (Murang'a High Court), in which restraining orders had been issued, and the Kangema magistrate had on his own motion suggested transfer and given timelines. The Respondents opposed, pointing to a pending preliminary objection challenging the Kangema court's jurisdiction and alleging prejudice from transferring the suit to Murang'a. Notably, at the hearing the Applicants' own advocate stated he opposed the transfer. The court, per J.G. Kemei J, held that transfer under section 18 is discretionary and requires merited reasons; the Applicants advanced none and failed to discharge the burden of justifying withdrawal. The plaint valued the suit lands at Kshs 5 million, within the Magistrates Court's pecuniary jurisdiction under section 7 of the Magistrates Act, and the claims - injunctive reliefs and customary trust in land - fell within section 7(3). The Kangema court therefore had jurisdiction. The Respondents' uncontroverted evidence of expense and inconvenience of travelling to Murang'a weighed against transfer. The court also confirmed that a Magistrates Court lacks power to withdraw and transfer suits, that power being reserved to the High Court (read ELC). The application was dismissed with costs to the Respondents.

Key legal issues

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01

Discretionary power to transfer under section 18 CPA

Holding

The power is discretionary and transfer is not granted for the sake of it; the applicant must merit it

Reasoning

The court set out factors relevant to transfer - expenses and difficulty of trial causing injustice, suits filed to occasion injustice, convenience, personal interest of the presiding judge, and reasonable apprehension of unfair trial. Applying these, no reason was advanced by the Applicants, whose own advocate opposed the transfer at the hearing.

p. 2
02

Jurisdiction of the Magistrates Court

Holding

The Kangema SPM Court had jurisdiction since the suit was valued at Kshs 5 million, within the chief magistrate's limit, and involved customary trust/land claims under section 7(3) of the Magistrates Act

Reasoning

The plaint declared a value of Kshs 5 million, below the twenty million shilling ceiling for a chief magistrate's court. The prayers included injunctive reliefs and customary trust in land, matters a magistrate's court may determine under section 7(3) concerning land held under customary tenure.

p. 2
03

Prejudice to Respondents

Holding

Uncontroverted evidence of expense and inconvenience of travelling to Murang'a weighed against transfer

Reasoning

The Respondents explained prejudice in the form of financial expenses and travel difficulties given that the parties reside in Kangema. The Applicants did not controvert this, reinforcing the conclusion that transfer was unmerited.

p. 3

Legal principles established

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  • The burden lies on a party seeking transfer of a suit to make a strong case for withdrawal and transfer
  • A Magistrates Court has no power to withdraw and transfer suits; that power under section 18 is reserved to the High Court/ELC
  • A suit belongs to the parties, not the court, and a transfer cannot be made merely because the trial court felt it appropriate

Court orders

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  1. 1.The Notice of Motion dated seeking withdrawal and transfer of SPM ELC No 12 of 2019, Kangema is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsections 7, 11, 12, 13, 14, 15, 16, 17, 18(b)
  • Magistrates Actsection 7, section 7(3)
Jurisdiction invoked
Section 18(b) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Nicholas Kihungi Kimari & 3 others v Kimari Maina & 3 others [2020] KEELC 224 (KLR)", Case Analysis (2020). ELC MSC APPL NO 7 OF 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/224/eng@2020-12-03

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