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ELCDismissedMiscellaneous Application (Embu CMCC No. 4 of 2020)· [2020] KEELC 619 (KLR)

Embu County Government v University of Embu [2020] KEELC 619 (KLR)

Environment and Land Court
29 October 2020
YAY.M. Angima
2,287 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A case filed in the wrong Kenyan court cannot simply be moved to the right one — it must be withdrawn and filed afresh.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 Embu County Government, as Applicant, sought by notice of motion dated 24th July 2020 the transfer of Embu CMCC No. 4 of 2020 (Embu County Government v University of Embu) from the Chief Magistrate's court to the Environment and Land Court, contending that the suit relating to occupation and use of land made that court 'best suited'. The Respondent opposed through grounds of opposition, arguing first that the suit was a nullity ab initio for want of jurisdiction and incapable of transfer, and second that the application was filed after undue delay. The court framed two issues: whether the Applicant had made out a case for transfer, and costs. On analysis, the court found the Applicant less than candid, since the real motivation was a pending preliminary objection that the Chief Magistrate's court lacked pecuniary jurisdiction over a 240-acre property valued at over Kshs. 360 million. Relying on the Court of Appeal decisions in the Phoenix Case and the Equity Bank case, and the Lillian S jurisdiction principle, the court held that a suit filed in a court without jurisdiction is a nullity, dead on arrival, and cannot be transferred under Section 18 of the Civil Procedure Act; jurisdiction cannot be conferred by the overriding objective or Article 159. The Applicant was nonetheless at liberty to discontinue the suit and file a proper one in a competent court. The notice of motion was dismissed with costs to the Respondent, costs following the event under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Applicant made out a case for transfer of Embu CMCC No. 4 of 2020 to this court

Holding

The application failed; the suit was a nullity ab initio for want of pecuniary jurisdiction and cannot be transferred.

Reasoning

The court found the applicant not forthright about the real reason for transfer - the pending preliminary objection on pecuniary jurisdiction over a 240-acre property worth Kshs. 360 million. Relying on Phoenix and Equity Bank, the court held that a suit filed without jurisdiction is dead on arrival and cannot be transferred under Section 18 of the Civil Procedure Act; jurisdiction cannot be cured by the overriding objective or Article 159. The applicant was free to discontinue and file afresh.

p. 3
02

Who shall bear costs of the application

Holding

Costs awarded to the Respondent as the successful party.

Reasoning

Applying section 27 of the Civil Procedure Act, costs follow the event, and the court found no good reason to depart from the general rule that a successful litigant should ordinarily be awarded costs.

p. 3

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to a competent court under Section 18 of the Civil Procedure Act; it must be withdrawn and filed afresh.
  • There must be genuine and valid justification for transfer of a suit; transfers cannot be made merely at an applicant's convenience.

Court orders

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  1. 1.The Applicant's notice of motion dated 24th July 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 18, 27
  • Environment and Land Court ActSection 26
  • Magistrates' Court ActSection 9
  • Constitution of KenyaArticle 159

Cases cited (8)

  • County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others
    [2015] eKLR
  • TSS Investments Limited & Another v NIC Bank Limited
    [2019] eKLR
  • Phoenix of E.A. Assurance Company 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
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    (1989)
  • Joseph Muthee Kamau & Another v David Mwangi Gichure & Another
    (2013) eKLR
  • Kagenyi v Musirambo
    (1968) EA 43
  • Hussein Janmohammed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 1A, 1B, 3A & 18 of the Civil Procedure Act (Cap. 21)

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, "Embu County Government v University of Embu [2020] KEELC 619 (KLR)", Case Analysis (2020). Miscellaneous Application (Embu CMCC No. 4 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/619/eng@2020-10-29

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