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ELCDismissedELC Suit No. 92 of 2020 (Notice of Motion dated 28th September 2021)· [2021] KEELC 514 (KLR)

Mbaruk Ayub Ali v Cootow & Associates [2021] KEELC 514 (KLR)

Environment and Land Court
8 December 2021
NMN.A. MATHEKA
1,430 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 cannot fix a lawsuit filed in the wrong court by transferring it; the claimant must withdraw it and start again.

What this practically means

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Executive summary

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The plaintiff, Mbaruk Ayub Ali Mbaruk, moved the Environment and Land Court at Mombasa by notice of motion dated 28th September 2021, under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 18, 63(e) and 89 of the Civil Procedure Act and Article 159 of the Constitution, seeking withdrawal of ELC Suit No. 92 of 2020 (Mbaruk Ayub Ali Mbaruk vs Cootow & Associates) from the Chief Magistrates Court at Mombasa and its transfer to the ELC for trial and disposal. He argued that although the claim was for Kshs. 6,674,237/-, the underlying conveyancing transaction involved over Kshs. 70,000,000/-, making the ELC the proper forum. The respondent opposed, submitting that a suit filed in a court without jurisdiction is a nullity ab initio which cannot be sanctified by transfer; the only remedy is withdrawal and filing afresh. The court, N.A. Matheka J, reviewed Section 18 of the Civil Procedure Act and the consistent line of authority - Owners of the Motor Vessel 'Lillian S', Phoenix of EA Assurance, Equity Bank Ltd vs Bruce Mutie Mutuku, Mini Bakeries and Tata Chemicals Magadi - holding that jurisdiction is primordial and that no competent suit exists capable of being transfer where the filing court lacked jurisdiction. The court found the suit had been filed in a court without jurisdiction and that transfer could not rescue an incompetent suit. The application was dismissed with costs on 8th December 2021.

Key legal issues

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01

Whether a suit filed without jurisdiction can be transferred to a competent court under Section 18 of the Civil Procedure Act

Holding

No - a suit filed in a court lacking jurisdiction is incompetent and a nullity ab initio and cannot be transferred; it must be withdrawn and filed afresh in a competent court

Reasoning

The court applied the settled jurisprudence from Owners of the Motor Vessel 'Lillian S' and Phoenix of EA Assurance that jurisdiction is primordial and cannot be conferred by consent, the overriding objective or Article 159. Relying on Equity Bank Ltd vs Bruce Mutie Mutuku, Mini Bakeries and Tata Chemicals Magadi, the court held that no competent suit exists capable of being transferred where the filing court lacked jurisdiction.

p. 2

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity that cannot be cured by transfer under Section 18 of the Civil Procedure Act; the only remedy is to withdraw it and file a fresh suit in a court with jurisdiction

Court orders

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  1. 1.The application dated 28th September 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Act Cap 21Sections 1A, 1B, 18, 63(e), 89
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Phoenix of EA Assurance Company Limited vs. SM Thiga t/a Newspaper Service
    (2019) eKLR
  • Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Mini Bakeries (NRB) Limited vs Levi Kariz Oriedo
    (2020) eKLR
  • Tata Chemicals Magadi Limited vs County Governor, Kajiado County & another; National Environmental Management Authority & another (Interested Parties)
    (2020) eKLR
Jurisdiction invoked
Section 18 of the Civil Procedure Act Cap 21; Article 159 of the Constitution of Kenya

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, "Mbaruk Ayub Ali v Cootow & Associates [2021] KEELC 514 (KLR)", Case Analysis (2021). ELC Suit No. 92 of 2020 (Notice of Motion dated 28th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/514/eng@2021-12-08

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