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ELCDismissedNotice of Motion dated 28th February 2019 in Naivasha CMCC No. 337 of 2014 (formerly Kajiado SRMCC No. 361 of 2009)· [2020] KEELC 3823 (KLR)

Hussein Ali Dimat & another v Sophia Mohamed Sarah [2020] KEELC 3823 (KLR)

High Court of Kenya
29 January 2020
COChristine Ochieng
1,387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court at Kajiado refused to move a land case back from Naivasha because an earlier High Court order transferring it there still stands.

What this practically means

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Executive summary

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This first-instance decision of the High Court at Kajiado (Christine Ochieng, J) determined the Applicants' Notice of Motion dated 28th February 2019 seeking the transfer of Naivasha CMCC No. 337 of 2014 (formerly Kajiado SRMCC No. 361 of 2009) from Naivasha to Kajiado Law Courts, where the suit land is situated. The Applicants contended that the Machakos High Court judgment of 3rd April 2014 in HCCA No. 142 of 2010 mistakenly ordered transfer to Naivasha, that their former advocate's pleading that the cause of action arose in Naivasha was a typing error curable under Article 159(2)(d) of the Constitution, and that the suit was originally properly filed in Kajiado. The Respondent opposed, arguing the application was an abuse of process and that the court could not sit in appeal over a concurrent court's judgment. The court framed a single issue: whether the suit should be transferred. Relying on Section 18 of the Civil Procedure Act, the court noted that the Applicants' authorities concerned situations where no court of concurrent jurisdiction had already ordered transfer. The Plaint pleaded that the cause of action arose in Naivasha and parties are bound by their pleadings. The court held that Article 159(2)(d) is not a remedy for procedural shortfalls where a judgment already determines the issue, that the Machakos judgment stands absent review or appeal, and that it cannot sit as an appellate court over a concurrent jurisdiction. The application was disallowed with costs to the Respondent.

Key legal issues

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01

Whether the suit should be transferred from Naivasha to Kajiado under Section 18 of the Civil Procedure Act

Holding

The application for transfer was declined despite the strong case on territorial jurisdiction, because the Machakos High Court judgment of 3rd April 2014 ordering transfer to Naivasha stands and has not been reviewed or appealed.

Reasoning

The court noted that the authorities relied on by the Applicants were decided where no court of concurrent jurisdiction had already ordered a transfer, which was not the case here. Sections 11 and 12 of the Civil Procedure Act govern jurisdiction, and parties are bound by their pleadings that the cause of action arose in Naivasha. Without a review or appeal against the Machakos judgment, that judgment stands and binds the trial court.

p. 2
02

Whether Article 159(2)(d) of the Constitution can cure the alleged mistake

Holding

No - Article 159(2)(d) is not a remedy for procedural shortfalls where a judgment already determines the issue.

Reasoning

The Applicants invoked Article 159(2)(d) to cure a typing error made by their former advocate indicating the cause of action arose in Naivasha. The court held that the constitutional overriding objective cannot be used to circumvent an existing judgment of a court of concurrent jurisdiction; the proper remedies were review or appeal, neither of which was pursued.

p. 2

Legal principles established

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  • Parties are bound by their pleadings.
  • Article 159(2)(d) of the Constitution is not a remedy for procedural shortfalls where a judgment already determines the issue in controversy.
  • A court cannot sit in appeal over a judgment of a court of concurrent jurisdiction.

Court orders

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  1. 1.The Notice of Motion application dated 28th February 2019 is disallowed/declined
  2. 2.Naivasha CMCC No. 337 of 2014 is to be heard and determined at Naivasha
  3. 3.Costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 18(1) and (2)
  • Civil Procedure ActSections 11 and 12

Cases cited (10)

  • Bamanya Vs Zaver
    (2002) 2EA 329
  • Patel Vs E A Cargo Handling Services Ltd
    (1974) EA 75
  • Philip Keipto Chemwolo & Another V Augustine Kubende
    (1986) KLR 495
  • Belinda Murai & Others V Amos Wainaina
    (1978) 1KLR 278
  • Kagenyi V Musiramo & Another
    (1968) EA 43
  • Microsoft Corporation V Mitsumi Computer Garage
    (2001) IEA 127
  • Saggu V RoadMasters Cycles V Ltd
    (2002) EA 258
  • D T Dobie & Co (K) Ltd V Joseph Mbaria Muchina
    CA 37 of 1978
  • David Kabungu V Zikarenga & 4 Others
    Kampala HCCS No. 36 of 1995 (unreported)
  • Victoria Katuku (Suing as the legal representative of the Estate of Eunice Mueni Muthamba) V Jessinkay Enterprises & 2 Others
    (2017) eKLR
Jurisdiction invoked
Inherent powers and jurisdiction of the Court and Article 159(2)(d) of the Constitution; Sections 18(1) and (2) 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 (1)

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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, "Hussein Ali Dimat & another v Sophia Mohamed Sarah [2020] KEELC 3823 (KLR)", Case Analysis (2020). Notice of Motion dated 28th February 2019 in Naivasha CMCC No. 337 of 2014 (formerly Kajiado SRMCC No. 361 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3823/eng@2020-01-29

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