Bebadis Company Limited v Nyotta & another (Environment & Land Miscellaneous Case E011 of 2022) [2022] KEELC 2272 (KLR)
The bottom line
#A Kenyan court ruled you cannot transfer a case filed in the wrong court; it must be withdrawn and filed afresh in the right one.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' grounds qualified as a proper preliminary objection
Only ground 2 (locus standi/jurisdiction) met the Mukisa Biscuits test; grounds on res judicata, sub-judice, forum shopping and abuse of process required probing of evidence and were improperly raised
Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. The court held that res judicata and sub-judice grounds require ascertainment of disputed facts and evidence, hence cannot be raised in limine. Upholding such an objection would be draconian.
Whether the Applicant had locus standi
The objection to standing failed: leave to file the amended defence and counterclaim had been granted, board resolutions authorised Daniel Kimani Kariuki, and the claim that he was a 'former director' required evidence
The record showed a court order of 12/01/2022 granting leave to file the amended defence and counterclaim, board resolutions of 10/01/2022 and 3/02/2022, and an earlier finding that the Applicant was a director. Whether he was a former director required evidence and could not be determined via preliminary objection.
Whether the subordinate court suit should be transferred to the High Court/ELC
The application for transfer failed because the counterclaim exceeded the magistrate court's pecuniary jurisdiction, rendering the suit incompetent and not capable of transfer under Section 18
Relying on Equity Bank v Bruce Mutie Mutuku, Phoenix of EA Assurance and Mini Bakeries, the court held that a suit filed in a court lacking jurisdiction cannot be sanctified by transfer under Section 18; parties cannot consent to confer jurisdiction, and the overriding objective cannot cure a fundamental lack of jurisdiction.
Legal principles established
#- A suit filed before a court lacking jurisdiction is incompetent and cannot be transferred under Section 18 of the Civil Procedure Act to a competent court; it must be withdrawn and filed afresh
- Grounds of res judicata, sub-judice and abuse of process involving disputed facts do not qualify as preliminary objections
Court orders
#- 1.The Notice of Preliminary Objection dated 28/01/2022 is dismissed entirely with costs in the cause
- 2.The Application dated 14/01/2022 is dismissed
- 3.Each party to bear its own costs
- 4.File closed
- Jurisdiction invoked
- Sections 1A, 3A and 18(b)(i) of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bebadis Company Limited v Nyotta & another (Environment & Land Miscellaneous Case E011 of 2022) [2022] KEELC 2272 (KLR)", Case Analysis (2022). Miscellaneous Application dated 14/01/2022 (ELC, Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2272/eng@2022-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.