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ELCPartially AllowedMalindi CMCC Land Case No. 2 of 2019 (transferred to the Environment & Land Court)· [2023] KEELC 8 (KLR)

Nyale & 2 others v Garam Investments Auctioneers & 2 others; NIC Bank Limited (Interested Party) (Environment & Land Case 33 of 2020) [2023] KEELC 8 (KLR)

Environment and Land Court
10 January 2023
MOM.A. Odeny
1,722 words in judgment
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The bottom line

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Kenya's Environment and Land Court voided a magistrate's injunction over Kshs 450 million land because magistrates can only handle disputes worth up to Kshs 10 million.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated February 1, 2019 by the Interested Party seeking to vary or set aside orders issued on January 18, 2019. The plaintiffs had obtained a temporary injunction from the subordinate court restraining an auction of Plot Nos 7548, 7550 and 13408, said to be valued at over Kshs 450 million. The Interested Party argued that the Principal Magistrate's court lacked pecuniary jurisdiction under Section 7 of the Magistrates' Courts Act, relying on Samuel Kamau Macharia v Kenya Commercial Bank and related authorities, and that the subsequent suo motu transfer of the suit to the ELC was irregular. The court framed two issues: whether the subordinate court had jurisdiction to issue the impugned order, and whether the transfer was regular. Applying The Owners of Motor Vessel 'Lillian S' v Caltex Oil, Kagenyi v Musiramo, and Equity Bank v Bruce Mutie Mutuku, the court held that the injunction was issued without jurisdiction and was null and void, and was accordingly set aside. The court further found that a court without jurisdiction cannot transfer a suit, so the transfer order was irregular and was also set aside with costs. The court noted the parties have other avenues to pursue their remedies. The application succeeded with costs to the Interested Party.

Key legal issues

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01

Pecuniary jurisdiction of the subordinate court

Holding

The Principal Magistrate's court lacked pecuniary jurisdiction over a suit whose subject matter was valued at over Kshs 450 million, far exceeding the Kshs 10 million limit for a Principal Magistrate under Section 7 of the Magistrates' Courts Act

Reasoning

The impugned injunction was issued by a Principal Magistrate whose civil jurisdiction under Section 7 of the Magistrates' Courts Act is limited to Kshs 10 million. The suit properties were valued at over Kshs 450 million, beyond even a Chief Magistrate's Kshs 20 million limit. Jurisdiction derives from the Constitution or statute and cannot be conferred by consent or crafty interpretation. An order issued without jurisdiction is a nullity.

p. 4
02

Regularity of the transfer of the suit to the ELC

Holding

The transfer of the suit by the subordinate court to the Environment and Land Court was irregular because a court without jurisdiction cannot transfer a suit

Reasoning

Relying on Kagenyi v Musiramo and Equity Bank v Bruce Mutie Mutuku, the court held that where a suit is first filed in a court lacking jurisdiction, no competent suit exists capable of transfer, and a transfer cannot sanctify an incompetent suit. Parties cannot consent to confer jurisdiction. The order of transfer was therefore set aside.

p. 4

Legal principles established

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  • A court cannot transfer a suit filed in a court lacking jurisdiction, as no competent suit exists capable of being transferred
  • An order issued by a court without jurisdiction is null and void

Court orders

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  1. 1.The order of injunction issued by the subordinate court is declared null and void and is set aside
  2. 2.The order transferring the case from the subordinate court to the Environment and Land Court is set aside
  3. 3.Costs of the application are awarded to the Interested Party

Authorities

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Legislation

  • Magistrates' Courts ActSection 7(1)
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21(1)
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Republic Vs Kajiado North District Ngong Land Disputes Tribunal, Senior Resident Magistrate Kadjiado
    [2014] eKLR
  • Macfoy vs United Africa Co Ltd
    [1961] 2 ALL ER 1169
  • The Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Limited
    [1989] KLR
  • Kagenyi –vs- Musiramo and Another
    (1968) EALR 43
  • Equity Bank Limited –vs- Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
On appeal from
Chief Magistrate's Court, Malindi
Malindi CMCC Land Case No. 2 of 2019
Jurisdiction invoked
Pecuniary jurisdiction under Section 7 of the Magistrates' Courts Act, 2015 following transfer from the subordinate court; Environment and Land Court jurisdiction

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, "Nyale & 2 others v Garam Investments Auctioneers & 2 others; NIC Bank Limited (Interested Party) (Environment & Land Case 33 of 2020) [2023] KEELC 8 (KLR)", Case Analysis (2023). Malindi CMCC Land Case No. 2 of 2019 (transferred to the Environment & Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/8/eng@2023-01-10

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