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ELCDismissedMiscellaneous application re transfer of Isiolo CM-ELC No. 22 of 2018· [2021] KEELC 2667 (KLR)

Said Abdikaarim Abdi v Shukri Jattani Sokore & Daudi Soran Sora [2021] KEELC 2667 (KLR)

Environment and Land Court
7 July 2021
LMLUCY N. MBUGUA
1,402 words in judgment
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The bottom line

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The Environment and Land Court refused to reclaim a land dispute from Isiolo's magistrate's court, ruling the magistrate must first decide its own jurisdiction.

What this practically means

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Executive summary

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The applicant, Said Abdikarim Abdi, moved the Environment and Land Court at Meru by notice of motion dated 9 March 2020 seeking re-transfer of Isiolo CM-ELC No. 22 of 2018 from the Chief Magistrate's Court to the ELC, contending the suit land measures about 2 acres and was valued by Ni-light Consultants at a figure in the tens of millions, beyond the magistrates' court's pecuniary jurisdiction. The 1st respondent opposed, asserting the dispute concerns residential plot 916 Chechelezi Isiolo measuring 0.084 hectares valued by Prudential Valuers at Kshs. 7,000,000, within the magistrate's court's jurisdiction; that the parties had consented on 6.2.2018 to transfer the suit from the High Court to the Isiolo magistrate's court; and that the application was a delaying tactic, the valuation being an afterthought procured by a stranger. The 2nd respondent filed no response. The court, per Hon. Lucy N. Mbugua, ELC Judge, applied the Owners of Motor Vessel Lillian 'S' principle that jurisdiction must be determined by the court seized of the matter, holding the magistrate's court should consider its own jurisdiction in the first instance. Applying Rapid Kate Services on transfer, the court found the nature and character of the proceedings did not warrant transfer, noting the applicant's unexplained delay since 6.2.2018. The miscellaneous suit was dismissed with costs to the 1st respondent. The ruling was delivered electronically under COVID-19 practice directions, with deemed waiver of Order 21 rule 1.

Key legal issues

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01

Pecuniary jurisdiction of the magistrate's court over land disputes

Holding

Magistrates' courts have jurisdiction over land disputes where the value of the subject matter does not exceed the pecuniary limits in the Magistrates' Courts Act; the question of jurisdiction should be determined first by the court currently seized of the matter

Reasoning

Sections 9 and 26 confer jurisdiction on magistrates' courts to hear land matters within pecuniary limits. The parties' conflicting valuations raised a factual dispute about value which the magistrate's court, being seized of the suit, should determine in the first instance. The ELC declined to pre-empt that determination via transfer.

p. 2
02

Whether the discretionary power to transfer should be exercised

Holding

The application for transfer was dismissed as an abuse of process after inordinate delay; the applicant did not explain the delay since the consent transfer order of 6.2.2018

Reasoning

The court applied the Rapid Kate Services principles on transfer, weighing the nature and character of proceedings and the interests of litigants. The applicant first raised the valuation issue long after consenting to transfer, without leave to rebut the 1st respondent's averments, indicating bad faith and delay.

p. 2

Legal principles established

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  • The court seized of a matter must consider and determine the question of its own jurisdiction in the first instance
  • Transfer of proceedings is a discretionary corrective measure guided by the nature and character of the proceedings, the relief sought, the interests of litigants and convenient administration of justice

Court orders

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  1. 1.The miscellaneous suit is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 13, 18
  • Civil Procedure RulesOrder 51 rule 1; Order 21 rule 1
  • Constitution of KenyaArticle 162(2)(b); Article 169(2)
  • Magistrates' Court ActSection 9(a)(v); Section 7(1)
  • Environment and Land Court ActSection 26(3) and (4)

Cases cited (5)

  • Matthias Mutisya Mwinzi & Another v Bash Hauliers & Another
    [2020] eKLR
  • Sustainable Management Services v New Mitaboni F.C.S
    [2017] eKLR
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • The Owners of the Motor Vessel Lillian 'S' v Caltex Kenya Ltd
    [1989] KLR 1
  • Rapid Kate Services Limited vs. Freight Forwarders Kenya Limited & 2 Others
    [2005] 1 KLR 292
Jurisdiction invoked
Sections 1A, 1B, 3A, 13 and 18 of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules; Article 162(2)(b) of the Constitution of Kenya

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, "Said Abdikaarim Abdi v Shukri Jattani Sokore & Daudi Soran Sora [2021] KEELC 2667 (KLR)", Case Analysis (2021). Miscellaneous application re transfer of Isiolo CM-ELC No. 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2667/eng@2021-07-07

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