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ELCDismissedKericho ELC Miscellaneous Application (Notice of Motion dated 21st September 2020) arising from Kericho CM ELC No. 3 of 2018· [2021] KEELC 626 (KLR)

Rebecca Chumo v Christina Cheptoo Chumo [2021] KEELC 626 (KLR)

Environment and Land Court
25 November 2021
MOM. C. Oundo
2,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 21st September 2020 by the Applicant, Rebecca Chepngeno Chumo, seeking a stay of proceedings in Kericho CM ELC No. 3 of 2018 (a dispute over land parcel No. Kericho/Kipchimchim/159, approximately 6.204 hectares/15 acres) so that the suit could be transferred to the Environment and Land Court. The application was grounded on Sections 1A, 1B, 3, 3A and 18(1)(b) of the Civil Procedure Act and Article 159(2) of the Constitution, on the basis that a valuation by ADOMAG Valuers and Associates dated 17th September 2020 valued the land at Ksh. 46,000,000/-, far exceeding the Chief Magistrate's pecuniary jurisdiction of Ksh. 20,000,000/- under Section 7 of the Magistrates' Courts Act. The Respondent opposed via a Preliminary Objection dated 23rd October 2020, arguing that a court has no jurisdiction to transfer a matter from a court lacking jurisdiction. The Applicant filed no submissions. Applying Mukisa Biscuits on preliminary objections and the Lillian S principle on jurisdiction, and relying on Kagenyi v Musiramo and related High Court authorities, M.C. Oundo, ELC Judge, held that a suit instituted before a court without jurisdiction is a nullity, incompetent and incapable of transfer under Section 18. The Preliminary Objection was upheld and the application dismissed with costs to the Respondents.

Key legal issues

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01

What constitutes a valid preliminary objection

Holding

An objection to jurisdiction is a proper preliminary objection as it raises a pure point of law

Reasoning

The court adopted the Mukisa Biscuits definition: a preliminary objection is a point of law pleaded or arising by clear implication from the pleadings which, if argued as a preliminary point, may dispose of the suit. An objection to the jurisdiction of the court was expressly cited as such a point, and it must not depend on ascertaining facts or exercising judicial discretion.

p. 2
02

Whether a suit filed in a court lacking pecuniary jurisdiction can be transferred under Section 18 of the Civil Procedure Act

Holding

No. The power to transfer under Section 18 can only be exercised where the court from which transfer is sought had jurisdiction; a suit filed without jurisdiction is incompetent and a nullity

Reasoning

The suit land was valued at Ksh. 46,000,000/-, far exceeding the Chief Magistrate's Ksh. 20,000,000/- pecuniary jurisdiction under Section 7 of the Magistrates' Courts Act. Following Kagenyi v Musiramo and subsequent authorities, the court held that a transfer order cannot issue unless the suit was first brought to a court with jurisdiction to try it; a nullity has no capacity to be transferred.

p. 3

Legal principles established

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  • A suit filed before a court without jurisdiction is a nullity and cannot be transferred under Section 18 of the Civil Procedure Act to a competent court

Court orders

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  1. 1.The Preliminary Objection dated 23rd October 2020 is upheld
  2. 2.The Notice of Motion application dated 21st September 2020 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 18(1)(a) & (b), 18(2)
  • Constitution of KenyaArticle 159(2), Articles 23(2), 169(1)(a) and (2)
  • Environment and Land Court Act2011
  • Magistrates' Courts ActSection 7(a)-(e)

Cases cited (9)

  • The Owners of Motor Vessel 'Lillian S' vs Caltex Kenya Limited
    [1989] KLR 1
  • Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors
    (1969) EA 696
  • Charles Omwata Omwoyo vs African Highlands & Produce Co Ltd
    [2002] eKLR
  • Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & Another
    [2012] eKLR
  • Kagenyi vs Musiramo
  • Ali Abdi Sheikh vs Edward Nderitu Wainaina & Others
  • Rainbow Manufacturers Limited vs National Bank of Kenya
  • Boniface Waweru Mbiyu vs Mary Njeri & Another
    [2005] eKLR
  • Wamathu Gichoya v Mary Wainoi Magu
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 18(1)(b) & 2 of the Civil Procedure Act and Article 159(2) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Rebecca Chumo v Christina Cheptoo Chumo [2021] KEELC 626 (KLR)", Case Analysis (2021). Kericho ELC Miscellaneous Application (Notice of Motion dated 21st September 2020) arising from Kericho CM ELC No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/626/eng@2021-11-25

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