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ELCDismissedNot stated in judgment (Originating Summons filed 21/7/2020)· [2021] KEELC 2377 (KLR)

MWK v PKI [2021] KEELC 2377 (KLR)

Environment and Land Court
29 July 2021
JKJ.G. Kemei
1,782 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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The Applicant, a former wife of the Respondent whose marriage was dissolved on 20 May 2020, filed an originating summons on 21 July 2020 seeking a declaration that parcel LOC11/MARAGI/xxxx, registered in the Respondent's name but allegedly acquired through joint monetary efforts, be shared between the parties prorate. On 31 May 2021, counsel for the Applicant, stating the land was valued at about Kshs 2 million and that the crux of the case was post-divorce division of property, orally applied for transfer of the suit to the High Court. The Respondent opposed, contending the ELC lacked jurisdiction and had no power to transfer a suit filed in a court without jurisdiction, relying on Kagenyi v Musiramo. The Court directed submissions on jurisdiction. The Applicant relied on AKK v PKW to argue the Court was clothed with jurisdiction; the Respondent relied on section 18 of the Civil Procedure Act, which donates transfer powers to the High Court only. The Court held that the Matrimonial Property Act designates the Resident Magistrate's Court as the competent forum, that section 13 of the ELC Act excludes marriage, divorce and connected matters, and that the ELC and High Court exercise distinct jurisdictions per the Supreme Court in Republic v Karisa Chengo. Finding the suit was filed in a court without jurisdiction, the Court dismissed the transfer application and struck out the originating summons, awarding the Respondent costs of both the application and the suit.

Key legal issues

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01

Whether the ELC can transfer a matrimonial property suit to the High Court

Holding

No. The suit was filed in a court without jurisdiction over post-divorce division of matrimonial property, so there is no legal basis to transfer it; both the application and the originating summons were dismissed/struck out.

Reasoning

Section 18 of the Civil Procedure Act empowers only the High Court to transfer suits. The Applicant bore the burden of justifying transfer, and gave no reason to move a Kshs 2 million suit to the High Court. The Matrimonial Property Act confers jurisdiction on the Resident Magistrate's Court, while section 13 of the ELC Act excludes marriage and divorce matters. A court lacking jurisdiction cannot make any further step.

p. 3

Legal principles established

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  • The ELC's jurisdiction under section 13 of the ELC Act does not extend to determination of marriage, divorce and connected matters including division of matrimonial property
  • A court without jurisdiction cannot transfer a suit; jurisdiction is everything

Court orders

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  1. 1.The application to transfer the suit to the High Court is dismissed
  2. 2.The main Originating Summons filed on 21/7/2020 is struck out
  3. 3.The Respondent shall have the costs of the application and the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b), 162(3), 165(3), 165(5), 165(6)
  • Civil Procedure ActSection 18
  • Environment and Land Court Act, Act No. 19 of 2011Section 13
  • Matrimonial Property Act (referred to as 'Matrimonial Act')Section 2 and section 17 (as argued)
  • Magistrates' Courts Act (Cap. 10)Section 3

Cases cited (5)

  • AKK Vs PKW
    CA No 61 of 2019
  • Kagenyi Vs Musiramo & Anor
    Misc App No 39 of 1967
  • Gaikia Kimani Kiarie Vs Peter Kimani Kiramba
    Misc App No 42 of 2019
  • Owners of the Motor Vessel "Lillian S" –vs- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Republic –vs- Karisa Chengo & 2 Others
    Supreme Court Petition No. 5 of 2015 [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act (Act No. 19 of 2011)

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, "MWK v PKI [2021] KEELC 2377 (KLR)", Case Analysis (2021). Not stated in judgment (Originating Summons filed 21/7/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2377/eng@2021-07-29

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