John Kirimana Ekabu v Stephen M’ Ikiamba & 6 others [2020] KEELC 2425 (KLR)
The bottom line
#A Kenyan court refused to move a long-running land case back to Meru, ruling that late valuation reports were not 'new evidence' justifying review.
What this practically means
#Executive summary
#Key legal issues
#Whether the valuation reports constituted new and important matter justifying review under Order 45
The reports did not satisfy the review threshold; the element of discovery after due diligence was lacking as the suit had been pending at Meru for close to a decade
Order 45 permits review only on discovery of new and important matter which, after due diligence, was not within the applicant's knowledge or could not be produced when the order was made. The respondents provided no evidence distinguishing the pecuniary value of the suit premises at commencement of the suit in 2010 from the current value, so the court could not discern that the Meru court had jurisdiction at commencement. Due diligence was lacking because the jurisdiction issue arose only after transfer to Tigania.
Whether lack of pecuniary jurisdiction of the transferee court warranted retransfer
No; want of jurisdiction of the court from which transfer is sought is not a ground for ordering transfer, and both magistrates' courts now lacked jurisdiction given the valuations
Relying on David Kabunga v Zikarenga, the court held that where the court from which transfer is sought has no jurisdiction to try the case, transfer would be refused. On the valuation reports, neither the Meru nor Tigania magistrates' courts had jurisdiction to handle the claim at the present time, so the review application on that basis could not succeed.
Legal principles established
#- The High Court's power to transfer suits under section 18 of the Civil Procedure Act may be exercised at any stage of the proceedings, but the burden lies on the applicant to make out a strong case for transfer
- Want of jurisdiction of the court from which a transfer is sought is not a ground for ordering transfer; transfer would be refused where that court has no jurisdiction to try the case
- A party must establish the pecuniary value of the cause of action before instituting proceedings
Court orders
#- 1.The application dated 14th October 2019 is dismissed
- 2.Costs of the application awarded to John Kiramana Ekabu, the Respondent
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act Cap 21 (withdrawal and transfer of suits); Order 45 of the Civil Procedure Act (review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kirimana Ekabu v Stephen M’ Ikiamba & 6 others [2020] KEELC 2425 (KLR)", Case Analysis (2020). Meru CMC ELC Case No. 592 of 2010 (transferred as Tigania PM ELC No. 65 of 2019); Misc. Application dated 22nd February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2425/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.