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ELCStruck OutELC No. 36 of 2020· [2021] KEELC 2574 (KLR)

Samson Ndambo Ngugi v Anthony Muchina Kamau & another [2021] KEELC 2574 (KLR)

Environment and Land Court
15 July 2021
JKJ. G. Kemei
1,249 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to transfer a land case to a lower court because the defendants had already filed an appeal — litigants must choose one path.

What this practically means

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Executive summary

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The Defendants/Applicants filed a notice of motion dated 7 June 2021 seeking the transfer of ELC No. 36 of 2020 from the Environment and Land Court at Murang'a to the Chief Magistrate's Court at Murang'a, on the strength of a valuation report valuing the suit land, Plot No. LOC.4/GARARARA/1156/23 Kandara market, at Kshs 12 million, within the Chief Magistrate's pecuniary jurisdiction. The Plaintiff/Respondent opposed, terming the application an afterthought, an abuse of process and forum shopping, and maintaining that the ELC has original and appellate jurisdiction over the trust issue which is the gravamen of the suit. He noted the matter had previously been before the Principal Magistrate's Court at Kandara in Civil Case No. 173 of 2013, where the court found it lacked jurisdiction, and that the Applicants had filed a notice of appeal against the ELC's ruling on a preliminary objection. The Court framed a single issue: whether the suit could be transferred to the Chief Magistrate's Court. It accepted that the ELC exercises original and appellate jurisdiction under Article 162(2)(b) and sections 3 and 13 of the ELC Act, that the Kshs 12 million customary-trust claim falls within the Chief Magistrate's jurisdiction, and that section 18(1)(a) of the Civil Procedure Act empowers transfer. However, because the Applicants had lodged a notice of appeal and sought typed proceedings to prepare their record of appeal, the Court held the application was an abuse of process, struck it out, and awarded costs to the Respondent.

Key legal issues

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01

Whether the suit can be transferred to the Chief Magistrate's Court at Murang'a

Holding

The application was struck out as unmerited because the Applicants had lodged a notice of appeal against the Court's ruling on a preliminary objection, making the transfer application an abuse of process

Reasoning

The Court accepted that it has power under section 18(1)(a) of the Civil Procedure Act to transfer a suit to a subordinate court, and that the Kshs 12 million subject matter falls within the Chief Magistrate's pecuniary jurisdiction. However, having lodged a notice of appeal and applied for typed proceedings to prepare a record of appeal, the Applicants were deemed to have submitted themselves to the Court of Appeal's jurisdiction. They had to elect between prosecuting the appeal and defending the suit.

p. 2
02

Jurisdiction of the Magistrates' Court over the subject matter

Holding

The suit, valued at Kshs 12 million and based on customary trust, falls within the Chief Magistrate's pecuniary jurisdiction and the Magistrates' Court's jurisdiction over customary land matters

Reasoning

Under sections 7 and 9 of the Magistrates' Court Act, a court presided over by a Chief Magistrate may hear civil proceedings up to Kshs 20 million, and has jurisdiction over customary law matters including land held under customary tenure. The claim is based on customary trust and the valuation of the subject matter was not disputed at Kshs 12 million.

p. 2

Legal principles established

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  • The Environment and Land Court exercises both original and appellate jurisdiction over ELC matters under Article 162(2)(b) and sections 3 and 13 of the ELC Act
  • The power to transfer a suit to a subordinate court is discretionary and exercised in the interests of justice
  • A party who has lodged an appeal cannot simultaneously seek transfer of the suit to a subordinate court; such conduct is an abuse of court process

Court orders

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  1. 1.The application dated 7/6/2021 is struck out as unmerited
  2. 2.Costs ordered in favour of the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Actsections 3 and 13
  • Magistrates' Court Actsections 7 and 9(a)
  • Land Registration Actsections 1A, 1B
  • Civil Procedure Actsections 1A, 1B and 18(1)(a)
  • Civil Procedure RulesOrder 51; Order 42 Rule 6(4)
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya read together with sections 3 and 13 of the Environment and Land Court Act

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, "Samson Ndambo Ngugi v Anthony Muchina Kamau & another [2021] KEELC 2574 (KLR)", Case Analysis (2021). ELC No. 36 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2574/eng@2021-07-15

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