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ELCDismissedOriginating Summons dated 13th August 2020· [2021] KEELC 1069 (KLR)

Nairobi City County v Attorney General [2021] KEELC 1069 (KLR)

Environment and Land Court
3 November 2021
OMOguttu Mboya
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi County's Kshs 1.4 billion suit failed because it was filed in a magistrates' court with no power to hear claims of that size.

What this practically means

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Executive summary

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Nairobi City County Government (formerly City Council of Nairobi) filed an Originating Summons seeking withdrawal of its suit, CMCC No. 2 of 2003 against the Attorney General, from the Chief Magistrate's Court at Nairobi and its transfer to the Environment and Land Court, together with amendment of its name. The underlying suit claimed over Kshs. 2 billion. The Applicant, through the affidavit of its advocate Samson Masaba Munikah, contended that it had since realised the Chief Magistrate's Court lacked the requisite monetary jurisdiction. The Respondent filed Grounds of Opposition contending the application was a non-starter and that a court cannot transfer a suit filed in a court without jurisdiction. The court framed two issues: whether the suit was filed in a court with requisite jurisdiction, and whether a suit filed without jurisdiction could be transferred to the ELC. Applying Section 3 of the then-operative Magistrates Act, which capped a Chief Magistrate's civil jurisdiction at Kshs. 3,000,000, the court held the 2002 suit claiming over Kshs. 1.4 billion was filed in a court without jurisdiction and was a nullity ab initio. Relying on the Lillian S and Phoenix of E.A. Assurance decisions, the court further held that a nullitous suit cannot be transferred to another court and that the Chief Magistrate's directions after finding no jurisdiction were erroneous. The Originating Summons was dismissed with costs.

Key legal issues

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01

Whether the Chief Magistrate's Court had pecuniary jurisdiction over the suit as filed in 2002

Holding

It did not; the Magistrates Act capped a Chief Magistrate's civil jurisdiction at Kshs. 3,000,000, while the claim was for over Kshs. 1.4 billion.

Reasoning

The suit was filed on 31 December 2002 seeking Kshs. 1,473,338,860 plus interest. Under Section 3 of the then-applicable Magistrates Act, a Chief Magistrate's civil jurisdiction could not exceed Kshs. 3,000,000 even with the Chief Justice's gazetted increase. The claim vastly exceeded this limit, so the suit was filed in a court without the requisite jurisdiction and was a nullity ab initio.

p. 3
02

Whether the ELC could transfer to itself a suit filed in a court lacking jurisdiction

Holding

It could not; a nullitous suit cannot be transferred or imbued with life.

Reasoning

Relying on Phoenix of E.A. Assurance Co Ltd v Simeon Muruchi Thiga, the court held that a suit filed before a court devoid of jurisdiction is a nullity ab initio and not transferable to another court; jurisdiction cannot be conferred by consent and all orders emanating from such a suit are null and void. The Chief Magistrate's earlier directions after finding no jurisdiction were erroneous.

p. 3

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity ab initio and cannot be transferred to another court.
  • A court without jurisdiction must pronounce itself at the onset and down its tools.

Court orders

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  1. 1.The Originating Summons dated the 13th of August 2020 was dismissed with costs.

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Magistrates Act (now repealed)Section 3

Cases cited (2)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989]
  • Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service
    [2019] eKLR (Civil Appeal No. 6 of 2018)
Jurisdiction invoked
Section 18 of the Civil Procedure Act, Chapter 21, Laws of Kenya (invoked by the Applicant for transfer jurisdiction)

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, "Nairobi City County v Attorney General [2021] KEELC 1069 (KLR)", Case Analysis (2021). Originating Summons dated 13th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1069/eng@2021-11-03

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