James Muraguri Kabono v Equity Bank (K) Limited [2021] KEELC 2413 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot transfer a case that a magistrate's court already dismissed for lack of jurisdiction—file fresh instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court (ELC) can transfer a suit pending in a subordinate court where the magistrate has already declined jurisdiction
The court cannot; once the magistrate downed tools for want of jurisdiction there is no suit pending to transfer, and want of jurisdiction in the transferring court is itself no ground for transfer
Section 18(1) of the Civil Procedure Act empowers the High Court to withdraw suits pending in subordinate courts. However, applying Lillian S and Kabungu, jurisdiction is everything and a transfer presupposes an existing proceeding. Where the magistrate had already held she lacked jurisdiction and downed her tools, there is no live suit to withdraw or transfer. Further, want of jurisdiction of the court from which transfer is sought is expressly no ground for ordering transfer; the applicant also failed to make out a strong case.
Whether the applicant made out a strong case for transfer
No. The applicant merely lamented the absence of interim orders preserving the suit property from an intended auction
Citing Kabungu, the burden lies on the applicant to make out a strong case for transfer; a mere balance of convenience is insufficient. The applicant only indicated that no interim orders were granted in the lower court and did not demonstrate expense, inconvenience, hardship or interests of justice justifying transfer. In any event, since the lower court had declined jurisdiction, nothing remained to transfer.
Legal principles established
#- A court without jurisdiction cannot make any order; it must down its tools once it finds it lacks jurisdiction
- The burden lies on an applicant seeking transfer of a suit to make out a strong case; want of jurisdiction of the court from which transfer is sought is no ground for ordering transfer
- Where the subordinate court has downed its tools for want of jurisdiction, there is no pending suit capable of transfer under section 18 of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion application dated 27th October 2020 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Section 18(1) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Muraguri Kabono v Equity Bank (K) Limited [2021] KEELC 2413 (KLR)", Case Analysis (2021). Notice of Motion dated 27th October 2020 (Kajiado Chief Magistrate's Court ELC Case No. 04 of 2020 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2413/eng@2021-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.