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ELCDismissedEnvironment and Land Miscellaneous Application E001 of 2023· [2023] KEELC 16718 (KLR)

Mungai & 2 others v Kunyanyi & 4 others

Environment and Land Court
29 March 2023
LGL. N. Gacheru
2,433 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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The 2nd Defendant, Maundu Andika, moved the Environment and Land Court at Murang'a by Notice of Motion dated 19th January 2023 seeking a stay of proceedings in Civil Suit No. 333 of 2016, pending before the Principal Magistrate at Murang'a, and its transfer to the Environment and Land Court for lack of jurisdiction. He relied on a valuation by Index Africa Ltd placing the suit property, land parcel No. Mitubiri/Wempa/Block/95, at Kshs.21,000,000, exceeding the Kshs.20 million pecuniary ceiling of a court presided over by a Chief Magistrate under Section 7(1) of the Magistrates' Act. The valuation followed a change of advocates. The 1st Plaintiff, with authority of his co-respondents, opposed the application as an abuse of process brought after seven years of delay, on a valuation obtained without the court's sanction or the parties' involvement, in a suit where witnesses had already testified. The court applied Section 18(1)(b)(ii) of the Civil Procedure Act and the transfer jurisprudence in Kithita Ngeana, Rapid Kate Services and Abraham Mwangi Wamigwi. It held that a transfer requires a strong case; that land values fluctuate, so the suit was properly filed when the property's value was below Kshs.20 million; that the unilateral, unsanctioned valuation could not be relied upon; and that transfer at this advanced stage would not serve the interests of justice. The application was dismissed entirely with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether the unilateral valuation report could establish want of pecuniary jurisdiction in the subordinate court

Holding

The court declined to rely on the valuation report as it was not sanctioned by the court nor disclosed to the other parties

Reasoning

The Applicant obtained a valuation through new advocates at a late stage, without the court's sanction or the other parties' involvement. The court held such a unilateral report serves only the Applicant's interests and cannot found a claim that the subordinate court lacks pecuniary jurisdiction, particularly where land values fluctuate over time.

02

Whether transfer was warranted given the stage of proceedings and the value of the suit property

Holding

Transfer refused; the suit was properly filed when the property's value was within the magistrate's jurisdiction and had significantly progressed

Reasoning

Land values appreciate or depreciate over time; the suit was filed seven years earlier when value was below Kshs.20,000,000. Witnesses had testified and the matter had significantly proceeded, so transfer would inconvenience all parties and not serve the interest of justice.

Legal principles established

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  • An order for transfer of a suit cannot be made unless the suit was in the first instance brought to a court with jurisdiction to try it
  • The burden lies on the applicant for transfer to make out a strong case; balance of convenience alone is insufficient

Court orders

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  1. 1.The Applicant's Notice of Motion dated 19th January 2023 is dismissed entirely
  2. 2.Costs of the application awarded to the Plaintiffs/Respondents

Authorities

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Legislation

  • Magistrates' ActSection 7(1)
  • Civil Procedure ActSection 18(1)(b)(ii)
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Owners of Motor Vessel "Lillians" Vs. Caltex Oil (K) Ltd (1989)

    Jurisdiction is everything; a court downs its tools once it finds it lacks jurisdiction

  • Kithita Ngeana vs. Mwaniki Kisuma
    [2018] eKLR

    Circumstances and factors for ordering transfer of suits; burden on applicant to make a strong case

  • Rapid Kate Services Limited vs. Freight Forwarders Kenya Limited & 2 Others
    [2005] 1 KLR 292

    Transfer power as a corrective measure; discretionary considerations under section 3A

  • Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & another
    [2012] eKLR

    A suit cannot be transferred unless first brought to a court with jurisdiction (Kagenyi vs Musiramo)

Jurisdiction invoked
Section 18(1)(b)(ii) of the Civil Procedure Act (power to withdraw and transfer suits pending in subordinate courts)

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, "Mungai & 2 others v Kunyanyi & 4 others", Case Analysis (2023). Environment and Land Miscellaneous Application E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16718/eng@2023-03-29

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