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ELCStruck OutMiscellaneous Application (Notice of Motion dated 14th June, 2020), Environment and Land Court, Machakos· [2021] KEELC 3478 (KLR)

Alexander Muema Muthengi v Agriculture Syndicate Limited & 2 others [2021] KEELC 3478 (KLR)

Environment and Land Court
30 April 2021
OAO. A. Angote
961 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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This ruling of the Environment and Land Court at Machakos (Angote J) determined a Notice of Motion dated 14th June, 2020 by Alexander Muema Muthengi, a former director of the 2nd Respondent, Gimu Development Co. Limited. He sought (i) the transfer of Machakos CMCC No. 136 of 2019, filed by Agriculture Syndicate Limited against Gimu Development Co. Limited, to the Environment and Land Court on the ground that the dispute - including a counter-claim for specific performance involving a transfer of 25 acres of L.R. No. 10426/28 - exceeded the magistrates' court's pecuniary jurisdiction, and (ii) leave to be enjoined as the 2nd Defendant upon transfer. He relied on a separation agreement dated 26th May, 2016 which, he said, permitted him to join the suit to protect his interests. The Respondents opposed, contending the dispute was contractual, not over land; that the Applicant was a stranger to the proceedings; and that the court lacked jurisdiction. The court held that a joinder application must be made in the court where the suit is pending, and that the Applicant, being a stranger to the lower court suit, lacked locus standi to seek its transfer. Noting also that the Applicant had withdrawn a prior joinder application in the lower court, the court struck out the Motion with costs without going into the merits of joinder or transfer.

Key legal issues

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01

Locus standi of a stranger to apply for transfer of a suit

Holding

The application for transfer fails because the Applicant is not a party to the lower court suit

Reasoning

The Applicant sought transfer of CMCC No. 136 of 2019 without being a party to it. The court reasoned that only parties to a suit can seek orders touching on it; a stranger lacks the legal capacity to move the court. Having not joined the suit, the transfer prayer could not succeed.

p. 2
02

Forum for a joinder application

Holding

Joinder must be sought in the court seized of the suit; the court cannot enjoin a person to a suit not before it

Reasoning

The court found it logically impossible to enjoin the Applicant as a defendant in a suit pending in the lower court. The Applicant had also previously filed a joinder application in the lower court but withdrew it; the proper course was to argue joinder and then raise jurisdiction there.

p. 2

Legal principles established

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  • Only a party to a suit has locus standi to apply for its transfer; a stranger cannot move for matters touching on the suit
  • A joinder application must be filed in the court where the suit is pending

Court orders

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  1. 1.The Applicant's suit commenced by way of Notice of Motion dated 14th June, 2020 is struck out
  2. 2.Costs awarded against the Applicant
Jurisdiction invoked
Environment and Land Court jurisdiction (Article 162(2)(b) jurisdiction; transfer from CMCC No. 136 of 2019 to the ELC at Machakos sought under civil procedure provisions)

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, "Alexander Muema Muthengi v Agriculture Syndicate Limited & 2 others [2021] KEELC 3478 (KLR)", Case Analysis (2021). Miscellaneous Application (Notice of Motion dated 14th June, 2020), Environment and Land Court, Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3478/eng@2021-04-30

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