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ELCDismissedKisumu CMC ELC Case No. 440 of 2018 (Application dated March 18, 2021)· [2022] KEELC 3659 (KLR)

Onunga v Onyango & 4 others (Miscellaneous Civil Application E8 of 2021) [2022] KEELC 3659 (KLR)

Environment and Land Court
13 May 2022
AOANTONY OMBWAYO
2,996 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 cannot transfer a case filed in a court without jurisdiction — such a case is a nullity that must start afresh.

What this practically means

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Executive summary

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The Applicant, Rose Akinyi Onunga, filed a Notice of Motion dated March 18, 2021 under sections 1A, 1B, 3A and 18 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules seeking withdrawal of Kisumu CMC ELC No. 440 of 2018 from the subordinate court and its transfer to, and hearing by, the Environment and Land Court at Kisumu. Her suit in the subordinate court sought injunctive relief and cancellation of titles emanating from Kisumu/Chiga/2396. She argued that the High Court's judgment in Kisumu High Court Succession Cause No. 1226 of 2014 had made findings touching the same subject matter, that the subordinate court could not overturn findings of a superior court, and that the ELC, being of equivalent status to the High Court, could hear the dispute. The 2nd and 3rd Respondents opposed, contending the application was an attempt to challenge a High Court judgment in a court of concurrent jurisdiction and that the remedy was appeal or review. The court considered its jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the ELC Act, and the transfer power under section 18 of the Civil Procedure Act. Relying on Kagenyi v Musiramo and related authorities, it held that the power to transfer cannot be exercised where the suit was filed in a court without jurisdiction, since such a suit is a nullity incapable of transfer. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the ELC can transfer a suit from a subordinate court that lacks jurisdiction

Holding

No - the power of transfer under section 18 of the Civil Procedure Act cannot be invoked where the original court lacked jurisdiction; the suit is a nullity incapable of transfer

Reasoning

Relying on Kagenyi v Musiramo and subsequent authorities, the court reasoned that an order for transfer can only be made where the suit was first brought to a court with jurisdiction to try it. A suit filed in a court without jurisdiction is defective and a nullity, and the ELC therefore has no power under section 18 to withdraw and transfer it to itself.

p. 6
02

Whether the ELC may overturn the decision of the High Court in a succession cause

Holding

No - courts of concurrent jurisdiction cannot overturn each other's decisions; the Applicant's remedy, if aggrieved, is appeal or review

Reasoning

The Respondents argued, and the court accepted, that the ELC and High Court are courts of concurrent status under Articles 162(2) and 165(2) of the Constitution. The Applicant was not a party to the succession cause, and the proper recourse against the High Court's findings is an appeal to the Court of Appeal or an application for review, not a transfer of a subordinate suit.

p. 4

Legal principles established

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  • The power to transfer a suit under section 18 of the Civil Procedure Act cannot be exercised where the suit was filed in a court without jurisdiction
  • A matter filed before a court lacking jurisdiction is a nullity and cannot be transferred to another court

Court orders

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  1. 1.The Application is dismissed with costs to the Respondents
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2011; Section 18 of the Civil Procedure 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, "Onunga v Onyango & 4 others (Miscellaneous Civil Application E8 of 2021) [2022] KEELC 3659 (KLR)", Case Analysis (2022). Kisumu CMC ELC Case No. 440 of 2018 (Application dated March 18, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3659/eng@2022-05-13

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