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ELCAllowedNyeri ELC 195 of 2017 (Miscellaneous Application - Notice of Motion dated August 13, 2021)· [2022] KEELC 3978 (KLR)

Waititu & another v Waititu & 2 others (Environment and Land Miscellaneous Application E011 of 2021) [2022] KEELC 3978 (KLR)

Environment and Land Court
28 July 2022
JOJO Olola
1,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that litigants shouldn't be punished when the court itself mistakenly sends their land case to a court without the power to hear it.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nyeri (JO Olola, J) on a notice of motion dated August 13, 2021 by John Mbuthia Waititu and Elizabeth Njeri Waititu seeking the transfer of Othaya SRMCC No. 14 of 2018 to the Chief Magistrates Court at Nyeri. The suit originated in the ELC as Nyeri ELC 195 of 2017 and was transferred on the court's own motion on February 21, 2018 to the Othaya Senior Resident Magistrates Court. Subsequently, a valuation report filed on June 25, 2020 valued the subject land at Kshs 7,200,000, beyond the Othaya court's pecuniary jurisdiction, and on July 15, 2020 that court declined jurisdiction. The 2nd defendant, Evanson Rwara Kahoro, opposed the transfer, arguing the Othaya proceedings were a nullity that could not be transferred, that the 1st defendant had died and had not been substituted, and citing delay, unclean hands and the inconvenience and expense of attending court in Nyeri. The court agreed that a suit filed in a court without jurisdiction is a nullity, but found that doctrine inapplicable because the suit was originally instituted in the ELC, a competent court, and was transferred in error before the valuation was available. It held the applicants should not be punished for the court's own error, and that the 1st defendant's death was a matter to be dealt with in the right forum rather than a bar to the application. The court allowed the motion, ordering the transfer of the Othaya suit to the Chief Magistrates Court at Nyeri, with no order as to costs.

Key legal issues

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01

Whether the suit in Othaya was a nullity incapable of transfer

Holding

The nullity doctrine did not apply because the suit originated in the ELC, a court with jurisdiction, and was transferred in error before the valuation revealed the Othaya court lacked pecuniary jurisdiction.

Reasoning

The court found the applicants had initially instituted the suit before the ELC, which had jurisdiction. The transfer to Othaya was on the court's own motion and before the valuation report was filed. Since the resulting jurisdictional defect was attributable to the court's own error and not the applicants, the suit was not treated as a nullity and could be transferred to a competent forum.

p. 2
02

Whether the death of the 1st defendant defeated the application

Holding

The death of the 1st defendant was not fatal to the suit against the remaining defendants and could be dealt with by the forum with jurisdiction.

Reasoning

The 2nd defendant argued that no orders could issue until the deceased 1st defendant was substituted. The court held that substitution is a procedural matter properly addressed once the suit is before the correct forum, and did not justify striking out the suit as against the 2nd and 3rd defendants or refusing the transfer.

p. 3

Legal principles established

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  • A suit filed before a court lacking jurisdiction is a nullity and cannot be transferred
  • Where a court itself erroneously transfers a matter to a forum without jurisdiction, the litigant should not be penalised for that error

Court orders

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  1. 1.Othaya SRMCC No. 14 of 2018; John Mbuthia Waititu and Another v Justus Thuku Waititu and 2 Others transferred from the Othaya Senior Resident Magistrates Court to the Chief Magistrates Court at Nyeri for hearing and determination
  2. 2.Application allowed with no order as to costs
Jurisdiction invoked
Inherent power of the High Court/Environment and Land Court to transfer suits between courts of coordinate administration; invoked via notice of motion for transfer of Othaya SRMCC No. 14 of 2018

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, "Waititu & another v Waititu & 2 others (Environment and Land Miscellaneous Application E011 of 2021) [2022] KEELC 3978 (KLR)", Case Analysis (2022). Nyeri ELC 195 of 2017 (Miscellaneous Application - Notice of Motion dated August 13, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3978/eng@2022-07-28

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