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ELCDismissedNotice of motion application dated October 5, 2022 (Murang'a)· [2023] KEELC 617 (KLR)

Samuel v Kihara (Environment and Land Miscellaneous Application E023 of 2022) [2023] KEELC 617 (KLR)

High Court of Kenya (Environment and Land jurisdiction exercised via transfer application)
30 January 2023
LGL Gacheru
496 words in judgment
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The bottom line

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A Kenyan judge refused to move a 12-year-old land case to a different court, ruling the transfer request wasted time and ordering the case heard where filed.

What this practically means

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Executive summary

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The applicant sought, by notice of motion dated October 5, 2022, the transfer of Murang'a MCELC No 165 of 2010 (Mwangi Samuel v Samuel Mugo Kihara), a land suit concerning Loc 2/Mairi/276 and Loc 2/Mairi/686, from the Murang'a Chief Magistrate's Court to Kigumo Law Courts, on the ground that the suit properties fall within Kigumo's jurisdiction and that Kigumo magistrates now have jurisdiction to hear land matters following the 2015 amendment to the Magistrate's Courts Act - at the time of filing in 2010, Kigumo lacked such jurisdiction. The respondent, through the replying affidavit of J Mwangi Ben Advocate, opposed the application, noting the suit had been in court for over 12 years and no good reason had been given for seeking transfer after 12 years. Justice L Gacheru held that sections 1A, 1B and 3A of the Civil Procedure Act require just, expeditious and proportionate resolution of disputes, and that seeking to transfer a matter filed in 2010 and pending over 12 years was an abuse of the court process. There were enough magistrates with relevant pecuniary jurisdiction at Murang'a to determine the matter. The application was dismissed with costs to the respondent, and the applicant was directed to prosecute MCELC No 165 of 2010 expeditiously before the Murang'a Chief Magistrate's Court.

Key legal issues

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Whether a transfer of a long-pending suit to a court that has since acquired jurisdiction serves the ends of justice

Holding

No - the application was dismissed as an abuse of the court process; the suit should be prosecuted expeditiously before the court where it is filed, which has magistrates with relevant pecuniary jurisdiction

Reasoning

The Magistrate's Courts Act was amended in 2015 giving Kigumo magistrates jurisdiction over land matters, but the suit was filed in 2010 and has been pending over 12 years. Sections 1A, 1B and 3A of the Civil Procedure Act direct courts toward just, expeditious and proportionate resolution. Transferring the aged matter would delay it rather than expedite determination, so the application was an abuse of process and was declined with costs.

p. 2

Legal principles established

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  • The overriding objective in sections 1A and 1B of the Civil Procedure Act requires courts to facilitate just, expeditious and proportionate resolution of disputes, and transferring an aged matter between courts of competent jurisdiction defeats that objective

Court orders

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  1. 1.The application dated October 5, 2022 is dismissed with costs to the respondent
  2. 2.The applicant to prosecute Murang'a MCELC No 165 of 2010 before the Murang'a Chief Magistrate's Court expeditiously

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Magistrate's Courts Act2015 amendment (jurisdiction over land matters)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (inherent power and overriding objective)

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 Kihara (Environment and Land Miscellaneous Application E023 of 2022) [2023] KEELC 617 (KLR)", Case Analysis (2023). Notice of motion application dated October 5, 2022 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/617/eng@2023-01-30

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