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ELCDismissedNotice of Motion dated October 5, 2022 (arising from Murang'a MCELC No. 167 of 2010)· [2023] KEELC 618 (KLR)

Samuel v Thuku (Environment and Land Miscellaneous Application E025 of 2022) [2023] KEELC 618 (KLR)

Environment and Land Court (High Court of Kenya)
30 January 2023
LGL. Gacheru
494 words in judgment
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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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This was a ruling on a Notice of Motion dated October 5, 2022 seeking the transfer of Murang'a MCELC No. 167 of 2010, Mwangi Samuel v Julius Macharia Thuku, from the Murang'a Chief Magistrate's Court to Kigumo Law Courts. The applicant's reason was that the suit properties, Loc.2/Mairi/276 and Loc.2/Mairi/687, fall within the jurisdiction of the Kigumo SPM Court, which at the time of filing in 2010 lacked jurisdiction to hear land matters, jurisdiction having been conferred following the 2015 amendment of the Magistrates' Courts Act. The respondent, through the Replying Affidavit of advocate J. Mwangi Ben, opposed the application on the ground that the suit had been in court for over 12 years and no good reason had been shown for bringing the application after that delay. L. Gacheru J declined the application. Relying on Sections 1A, 1B and 3A of the Civil Procedure Act on the overriding objective and the court's inherent power to prevent abuse of process, the court held that seeking to transfer a matter filed in 2010 was an abuse of the court process, that Murang'a Chief Magistrate's Court had magistrates with the relevant jurisdiction, and that the Judiciary's objective was the expeditious determination of old matters rather than their transfer between courts. The application was dismissed with costs to the respondent and the suit directed to proceed expeditiously before the Murang'a Chief Magistrate's Court.

Key legal issues

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01

Whether the suit should be transferred to Kigumo Law Courts

Holding

The transfer application was declined because the suit had been pending since 2010 and the reason given - Kigumo's newly acquired jurisdiction over land matters after the 2015 amendment of the Magistrates' Courts Act - did not justify transfer

Reasoning

The court invoked Section 1A of the Civil Procedure Act on the overriding objective of facilitating just, expeditious and proportionate resolution of disputes, and Section 3A on the court's inherent power. Transferring a 12-year-old suit would retard expeditious disposal rather than advance it, since Murang'a Chief Magistrate's Court already has magistrates with the relevant jurisdiction.

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02

Whether the 12-year delay in making the transfer application amounted to abuse of process

Holding

Yes. Moving to transfer a suit filed in 2010 only in October 2022 was held to be an abuse of the court process

Reasoning

The court reasoned that the delay was inimical to the overriding objective under Sections 1A and 1B and to the inherent power under Section 3A to prevent abuse of court process. The proper course was for the applicant to prosecute the existing suit expeditiously where it was filed.

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Legal principles established

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  • Transferring a long-pending suit to another court solely because that court has since acquired jurisdiction is an abuse of the court process and contrary to the overriding objective of just, expeditious and proportionate resolution of disputes

Court orders

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  1. 1.The Application dated October 5, 2022 is dismissed with costs to the Respondent
  2. 2.The suit Murang'a MCELC No. 167 of 2010, Mwangi Samuel v Julius Macharia Thuku, 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
Jurisdiction invoked
Sections 1A, 1B and 3A 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, "Samuel v Thuku (Environment and Land Miscellaneous Application E025 of 2022) [2023] KEELC 618 (KLR)", Case Analysis (2023). Notice of Motion dated October 5, 2022 (arising from Murang'a MCELC No. 167 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/618/eng@2023-01-30

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