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ELCDismissedELC Miscellaneous Application (unnumbered on the face of the judgment; applications dated 1.2.2022 and 8.3.2022 arising from Githongo ELC No. 34 of 2019)· [2022] KEELC 298 (KLR)

Evangeline Nkatha Mugambi v Festus Muriungi Kinoti [2022] KEELC 298 (KLR)

Environment and Land Court
27 April 2022
CNC.K. Nzili
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a case filed in a court without jurisdiction is a legal nullity that cannot be rescued by transfer.

What this practically means

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Executive summary

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Evangeline Nkatha Mugambi (the defendant before the subordinate court) filed two applications seeking transfer of Githongo ELC No. 34 of 2019 to Nkubu Law Courts and an order stopping the respondent, Festus Muriungi Kinoti, from blocking her access to her home through a trench/pit latrine allegedly erected across her access road. She argued under Section 15 of the Civil Procedure Act that the suit land is in Uruku, South Imenti, within Nkubu's jurisdiction, relying on UNM v SMM on convenience of parties. The respondent opposed, contending the application was forum shopping, that three years had lapsed, that Nkubu had a backlog, and that he lawfully bought the land. The court framed three issues: its power to transfer, whether transfer was deserved, and whether to stop the road blockage. Holding that jurisdiction is everything and cannot be conferred by consent or the passage of time, and applying Owners of Lilian 'S', Phoenix of E.A Assurance, Equity Bank v Mutie and Macfoy, the court found the suit had been filed in a court without territorial jurisdiction and was therefore a nullity, dead on arrival, which could not be cured by transfer under Section 18. There being nothing to transfer, and no evidence (such as a surveyor's report) supporting the access-road claim, the court dismissed both applications with no orders as to costs.

Key legal issues

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01

Whether the court could transfer a suit filed in a court lacking territorial jurisdiction

Holding

No. A suit filed in a court without jurisdiction is dead on arrival and a nullity; there is nothing to transfer and transferring it would sanctify an illegality.

Reasoning

Relying on Owners of Lilian 'S', Phoenix of E.A Assurance, Equity Bank Ltd v Bruce Mutie Mutuku and Macfoy, the court held that jurisdiction is everything; where a suit is filed in a court without territorial jurisdiction under Section 15 of the Civil Procedure Act, it is a nullity, and Section 18 transfer powers cannot be used to breathe life into it. Consent, acquiescence and lapse of time cannot confer jurisdiction.

p. 2
02

Whether the court should stop the blockage of the applicant's access road

Holding

No. There was no surveyor's report or evidence of who trespassed, and no pending appeal; the court cannot issue orders in vacuum.

Reasoning

The prayer was made in a miscellaneous application with no pending appeal. The applicant had not produced a surveyor's report nor shown she raised the issue with the Public Health Office, Public Roads Engineer or land registrar. The court declined to act on speculation or supposition.

p. 2

Legal principles established

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  • Jurisdiction cannot be conferred by consent or acquiescence of the parties.
  • Passage of time cannot cure want of jurisdiction; jurisdiction exists ab initio or not at all.
  • A suit filed before a court lacking jurisdiction is a nullity and cannot be transferred to a competent court.

Court orders

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  1. 1.The application (for transfer of Githongo ELC No. 34 of 2019 to Nkubu Law Courts and for stopping blockage of the access road) is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 15
  • Civil Procedure ActSection 18
  • Civil Procedure ActSections 1A, 1B and 3A
  • Public Roads and Roads of Access ActSection 14
  • Constitution of Kenya, 2010Article 159

Cases cited (7)

  • UNM vs SMM & another
    (2018) eKLR
  • Owners of Lilian "S" vs Caltex Oil Kenya Ltd
    (1989) eKLR
  • George C. Gichuru vs Senior Private Kioko & another
    (2013) eKLR
  • Peter Gichuki Kingaria vs IEBC & 2 others
    (2013) eKLR
  • Phoenix of E.A Assurance Co. Ltd vs S.M Thiga t/a Newspaper Service
    (2019) eKLR
  • Equity Bank Ltd vs Bruce Mutie Mutuku T/A Diani Tour Travel
    (2016) eKLR
  • Macfoy vs United Africa Co. Ltd
    (1961) 3 ALL ER 1169
Jurisdiction invoked
Section 18 of the Civil Procedure Act (power to transfer suits from subordinate courts); Article 159 of the Constitution referenced

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Evangeline Nkatha Mugambi v Festus Muriungi Kinoti [2022] KEELC 298 (KLR)", Case Analysis (2022). ELC Miscellaneous Application (unnumbered on the face of the judgment; applications dated 1.2.2022 and 8.3.2022 arising from Githongo ELC No. 34 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/298/eng@2022-04-27

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