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ELCDismissedNot stated in judgment (Notice of Motion dated 5th October 2022 in Murang'a MCELC No. 164 of 2010)· [2023] KEELC 554 (KLR)

Samuel v Mwangi (Environment & Land Miscellaneous Case E024 of 2022) [2023] KEELC 554 (KLR)

Environment and Land Court
30 January 2023
LGL. Gacheru
488 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 5th October 2022, the applicant sought the transfer of Murang'a MCELC No. 164 of 2010 (Mwangi Samuel v Kihara Mwangi) from the Murang'a Chief Magistrate's Court to the Kigumo Law Courts, on the ground that the suit properties, Loc.2/Mairi/276 and Loc.2/Mairi/688, fall under the jurisdiction of the Kigumo SPM Court, which lacked jurisdiction over land matters when the suit was filed in 2010. The respondent, through the Replying Affidavit of J Mwangi Ben Advocate, opposed the application, noting that the suit had been in court for over 12 years with no good reason offered for the belated application. The court, relying on Sections 1A, 1B and 3A of the Civil Procedure Act, held that the overriding objective is the just, expeditious and proportionate resolution of disputes, and that transferring a 2010 matter after 12 years would be an abuse of the court process. It found that Murang'a Chief Magistrate's Court has magistrates with the relevant pecuniary jurisdiction to hear the matter and that the Judiciary's objective is to have old matters prosecuted and determined expeditiously rather than transferred between courts. The application was dismissed with costs to the respondent, and the suit was directed to proceed expeditiously before the Murang'a Chief Magistrate's Court.

Key legal issues

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01

Whether the transfer application should be granted now that Kigumo SPM Court has jurisdiction over land matters

Holding

The application was declined; the suit must proceed before Murang'a Chief Magistrate's Court, which has magistrates with the relevant pecuniary jurisdiction.

Reasoning

The Magistrates' Courts Act was amended in 2015 to confer jurisdiction on Kigumo SPM Court, but the suit was filed in 2010 and has been in the court system for over 12 years. Seeking transfer at this stage is an abuse of the court process. The order promoting the overriding objective under Sections 1A and 1B of the Civil Procedure Act is to refuse the transfer and direct expeditious prosecution of the suit before Murang'a Chief Magistrate's Court.

p. 2
02

The court's power to make orders necessary for the ends of justice

Holding

Section 3A of the Civil Procedure Act confers inherent power to make orders necessary for the ends of justice and to prevent abuse of the court process, which was exercised to dismiss the application.

Reasoning

The court invoked its inherent power under Section 3A alongside the overriding objective under Sections 1A and 1B. It reasoned that transferring a 2010 matter after 12 years would amount to abuse of process, whereas expeditious prosecution before the existing court best serves the ends of justice and the Judiciary's objective of determining old matters.

p. 2

Legal principles established

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  • The overriding objective of the Civil Procedure Act is to facilitate the just, expeditious and proportionate resolution of disputes, and courts should facilitate expeditious disposal of matters
  • An application to transfer a long-pending matter to another court merely because jurisdiction has since been conferred on that court may constitute an abuse of the court process

Court orders

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  1. 1.The Notice of Motion application dated 5th October 2022 is dismissed with costs to the Respondent
  2. 2.The suit Murang'a MCELC NO 164 of 2010 Mwangi Samuel Vs Kihara Mwangi to proceed expeditiously before Murang'a Chief Magistrate's Court

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Magistrates' Courts Act2015 amendment (conferring jurisdiction over land matters on magistrates' courts)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (inherent power and overriding objective to make orders for transfer of suits)

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, "Samuel v Mwangi (Environment & Land Miscellaneous Case E024 of 2022) [2023] KEELC 554 (KLR)", Case Analysis (2023). Not stated in judgment (Notice of Motion dated 5th October 2022 in Murang'a MCELC No. 164 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/554/eng@2023-01-30

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