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ELCDismissedELC Misc. Application (Notice of Motion dated 22nd July 2020), Kajiado· [2020] KEELC 469 (KLR)

Tata Chemicals Magadi Limited v County Governor, Kajiado County & another; National Environmental Management Authority & another (Interested Parties) [2020] KEELC 469 (KLR)

Environment and Land Court of Kenya
3 December 2020
COChristine Ochieng
2,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a case filed in the wrong court cannot simply be moved to the right one — it must be withdrawn and filed afresh.

What this practically means

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Executive summary

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The Applicant, Tata Chemicals Magadi Ltd, moved the Environment and Land Court at Kajiado by Notice of Motion dated 22nd July 2020, under sections 18(1)(b), 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking transfer of Kajiado CM ELC 21 of 2019 from the Kajiado Chief Magistrate's Court to the ELC for hearing and final determination. The suit, filed on 21st March 2019 with injunctive reliefs sought, had on 15th July 2020 been the subject of a ruling in which the Principal Magistrate (Hon. Kahuya I. M, PM) declined to grant the orders sought, stating she lacked pecuniary jurisdiction over a matter valued at Kshs 100,000,000. The Respondents opposed the transfer through Grounds of Opposition, contending that a suit filed in a court lacking jurisdiction was a nullity incapable of transfer, that the magistrate had downed her tools, and that the proper remedy was withdrawal and fresh filing. The court framed a single issue: whether the suit should be transferred. Relying on the binding Court of Appeal decisions in Phoenix of East Africa Assurance Co. Ltd v S M Thiga and Equity Bank Ltd v Bruce Mutie Mutuku, the court held that a suit filed in a court lacking jurisdiction cannot be transferred under section 18 so as to sanctify an incompetent suit, and that the jurisdictional defect could not be cured by the overriding objective provisions. The applicant's High Court authorities were treated as persuasive only. The application was dismissed with costs, with the court noting the applicant remained free to withdraw the lower court suit and file afresh in the competent court.

Key legal issues

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01

Whether the High Court (ELC) may, under section 18 of the Civil Procedure Act, transfer a suit in which the subordinate court has declined jurisdiction

Holding

It may not; where the trial magistrate has downed tools for want of pecuniary jurisdiction, the suit cannot be transferred to sanctify it, and the proper remedy is withdrawal and fresh filing in the competent court.

Reasoning

The court distinguished the situation from an ordinary transfer: the Principal Magistrate had expressly declared she lacked pecuniary jurisdiction over a suit valued at Kshs 100,000,000, though she neither struck out nor dismissed the suit. Relying on binding Court of Appeal authority (Phoenix of East Africa Assurance and Equity Bank v Mutie), the judge held that a transfer under section 18 cannot confer jurisdiction on a court that lacks it. High Court decisions relied on by the applicant were persuasive only.

p. 3
02

Whether the suit remained pending before the subordinate court

Holding

The suit was still pending because the magistrate neither struck it off nor dismissed it.

Reasoning

The court noted from the excerpt of the ruling of 15th July 2020 that the magistrate only declined to grant the interlocutory orders for want of pecuniary jurisdiction and did not dismiss or strike out the suit; nonetheless, the lack of jurisdiction made transfer futile.

p. 2

Legal principles established

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  • A suit filed in a court lacking jurisdiction cannot be transferred under section 18 of the Civil Procedure Act to a court with jurisdiction, as that would sanctify an incompetent suit; the remedy is to withdraw it and file afresh in the court seized of jurisdiction.
  • Lack of jurisdiction is not a procedural technicality curable by the overriding objective provisions of the Civil Procedure Act.

Court orders

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  1. 1.Dismissal of the Applicant's Notice of Motion dated 22nd July 2020
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 18(1)(b)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • Gipson Kiplangat Langat V Kenya Kazi Services Limited
    (2012) eKLR
  • Sharad Wadhia V Wadhia Polymers EA Limited
    (2020) eKLR
  • Grace Thongori Komo V Dan Njagi Ndwiga
    (2013) eKLR
  • Phoenix of East Africa Assurance Co. Ltd V S M Thiga T/A Newspaper Service
    (2019) eKLR
  • Equity Bank Limited V Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Kagenyi V Musirambo
    (1968) EA 43
  • Boniface Waweru Mbiyu V Mary Njeri & Another
    (2005) eKLR
  • Abraham Wamigwi V Simon Mbiriri Wanjiku
    (2012) eKLR
  • Owners of Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Ltd
    (1989)
Jurisdiction invoked
Sections 18(1)(b), 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Tata Chemicals Magadi Limited v County Governor, Kajiado County & another; National Environmental Management Authority & another (Interested Parties) [2020] KEELC 469 (KLR)", Case Analysis (2020). ELC Misc. Application (Notice of Motion dated 22nd July 2020), Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/469/eng@2020-12-03

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