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ELCOtherNot stated in judgment· [2023] KEELC 620 (KLR)

Application for transfer of Makueni Chief Magistrate's ELC Case No E028 of 2021 to Tawa Law Courts

High Court of Kenya
25 January 2023
TMT. Murigi
1,732 words in judgment
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The bottom line

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A Kenyan suit filed in the wrong court isn't dead—the High Court can still transfer it to the correct court rather than force parties to start afresh.

What this practically means

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Executive summary

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This is a ruling of the High Court on a notice of preliminary objection to an application dated April 11, 2022 seeking the transfer of Makueni Chief Magistrate's Court ELC Case No E028 of 2021 to Tawa law courts, on the ground that the suit property lies within the geographical jurisdiction of Tawa. The applicant contended that the parties agreed to the transfer, no prejudice would be caused, and that the trial court's ruling of January 18, 2022 had upheld a preliminary objection on territorial jurisdiction and directed the parties to move a superior court for an order of transfer. The respondents objected that, jurisdiction having been found lacking, the suit became a nullity with nothing to transfer, divesting the court of power to transfer it. The court identified the sole issue as whether the suit was a nullity incapable of transfer. After setting out the settled law on preliminary objections from Mukisa Biscuits, Oraro v Mbaja and Nitin Properties, the court held that because the trial court had declined to dismiss the suit and instead directed the parties to seek transfer, the suit remained alive and was not a nullity. Filing in the wrong court was a technicality that ought not to defeat the substance of the suit, having regard to Article 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act. The preliminary objection was dismissed. Notably, the ruling does not expressly grant the transfer order itself, and the applicant's authorities were cited but not adopted.

Key legal issues

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01

Whether a suit found to have been filed in a court lacking territorial jurisdiction becomes a nullity incapable of transfer

Holding

No - the trial court declined to dismiss the suit and directed parties to move a superior court for transfer; the suit is therefore alive and transferable under section 18 of the Civil Procedure Act

Reasoning

The trial court, in its ruling of January 18, 2022, upheld the preliminary objection on territorial jurisdiction but declined to dismiss the suit, instead directing the parties to seek an order of transfer from the High Court. Having declined to dismiss the suit, it remains alive and is not a nullity. It is common ground that the suit ought to have been filed at Tawa law courts. Section 18 empowers the High Court to transfer such suits, and Article 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act require the court not to defeat justice on a technicality such as filing in the wrong station.

p. 4
02

The nature and requirements of a preliminary objection

Holding

A preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or discretion exercised

Reasoning

Both parties relied on the classic statement of Law JA in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd, supplemented by Sir Charles Newbold JA and applied in Oraro v Mbaja and Nitin Properties Ltd v Singh Kalsi. The court applied these authorities to the respondents' objection, which failed because the suit was not a nullity.

p. 3

Legal principles established

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  • A preliminary objection must be on a pure point of law, incapable of proof by evidence
  • Where a trial court declines to dismiss a suit for want of territorial jurisdiction and instead directs parties to seek transfer, the suit remains alive and is not a nullity

Court orders

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  1. 1.The preliminary objection raised by the respondents is dismissed

Authorities

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Legislation

  • Judicature Actcap 8
  • Civil Procedure Actsection 18
  • Civil Procedure Actsections 1A, 1B and 3A
  • The High Court (Practice and Procedure) Rulespart 1 rule 3
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) eKLR
  • Nitin Properties Ltd v Singh Kalsi & another
    (1995) eKLR
  • Phoenix of E.A Assurance Co Limited v S.M Thiga T/A Newspaper Service
    (2019) eKLR
  • Kithita Ngeana v Mwaniki Kisume
    (2018) eKLR
  • John Mwangi Karanja v Alfred Ndiangui
    (2011) eKLR
Jurisdiction invoked
Section 18 of the Civil Procedure Act (transfer of suits); Judicature Act cap 8; 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, "Application for transfer of Makueni Chief Magistrate's ELC Case No E028 of 2021 to Tawa Law Courts", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/620/eng@2023-01-25

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