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ELCStruck OutMiscellaneous Civil Application 11 of 2019· [2023] KEELC 17756 (KLR)

Guru Mechanical Engineers Limited v Kibe & another

Environment and Land Court
18 January 2023
4,912 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cannot move a case to the High Court, and a case filed in the wrong court cannot be transferred at all.

What this practically means

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Executive summary

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The Applicant, by Notice of Motion dated 8 February 2019, sought transfer of Milimani CMCC No 6623 of 2014 (a claim arising from an alleged unlawful distress for rent by the 1st Respondent through the 2nd Respondent auctioneers in October 2014) from the Chief Magistrate's Court to the High Court at Nairobi, on the ground that the value of the claim exceeded the magistrate's court's monetary jurisdiction. The application, originally filed in the High Court, was transferred to the Environment and Land Court by consent and orders of 25 July 2022. The Respondents opposed, raising a preliminary objection and arguing limitation, want of the ELC's jurisdiction, and inordinate delay. The court framed two issues: whether the ELC could withdraw and transfer the suit to the High Court, and whether it could transfer a suit filed in a court lacking jurisdiction. Relying on the Supreme Court's decision in Republic v Karisa Chengo, the court held that the ELC and High Court are separate, equal superior courts, and that Section 18 of the Civil Procedure Act permits a superior court to transfer a suit only to itself or to a court subordinate to it - the High Court is not subordinate to the ELC. Following Kagenyi v Musirambo, Equity Bank v Mutie and Albert Chaurembo Mumba, the court further held that a suit filed in a court without jurisdiction is incompetent and cannot be transferred to a competent court. The application was struck out with costs to the Respondents.

Key legal issues

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01

Whether the ELC can transfer a suit from a subordinate court to the High Court

Holding

No - the ELC and High Court are separate, equal superior courts; neither can direct the other, and Section 18 CPA only permits transfer to itself or a court subordinate to it

Reasoning

Relying on the Supreme Court's decision in Republic v Karisa Chengo, the court held that the ELC and High Court are distinct autonomous courts of equal status but different jurisdictions. Section 18 of the Civil Procedure Act empowers the High Court to withdraw and transfer suits only to itself or to courts subordinate to it. The High Court is not subordinate to the ELC, so the ELC cannot order transfer of the suit to the High Court; doing so would amount to superintending the High Court contrary to the constitutional demarcation of jurisdiction.

p. 8
02

Whether a court can transfer a suit filed in a court without jurisdiction

Holding

No - a suit filed before a court lacking jurisdiction is incompetent and cannot be transferred to a competent court

Reasoning

Following Kagenyi v Musirambo, Equity Bank v Mutie and the Supreme Court in Albert Chaurembo Mumba, the court held that where a suit is instituted in a court without jurisdiction, no competent suit exists capable of being transferred. Since the Applicant conceded the claim exceeds the Chief Magistrate's monetary jurisdiction, the ELC was divested of jurisdiction to order the transfer sought.

p. 10

Legal principles established

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  • A superior court can only withdraw and transfer a suit pending in a subordinate court to itself or to a court subordinate to it, not to another superior court
  • A suit filed in a court lacking jurisdiction cannot be transferred to a competent court; parties cannot confer jurisdiction by consent

Court orders

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  1. 1.The application dated 8 February 2019 struck out with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Limitation of Actions ActChapter 22 Laws of Kenya
  • Civil Procedure Rules 2010Order 2 Rule 6
  • Constitution of Kenya 2010Articles 162(1), 162(2)(b), 162(3), 165(5)

Cases cited (11)

  • Abardare Investments v Bernard Wachira & 5 others
    (2014) eKLR

    Court's jurisdiction to transfer suit from subordinate court

  • Joseph Mururi v Godfrey Gikundi Anjuri
    (2012) eKLR

    High Court could withdraw and transfer suit from subordinate court to ELC; distinguished

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 others
    (2012) eKLR

    Jurisdiction derived from Constitution or legislation

  • Haron Onyancha v National Police Service Commission & another
    (2017) eKLR

    No amendment where intended cause of action is statute-barred

  • Iga v Makerere University
    (1972) EA 65

    Amendment cannot introduce a limitation-barred cause of action

  • Republic v Karisa Chengo & 2 others
    [2017] eKLR

    ELC, ELRC and High Court are equal, autonomous courts with distinct jurisdictions

  • Kagenyi v Musirambo & another
    (1968) EA 43

    Suit filed in a court without jurisdiction cannot be transferred

  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR

    Illegal to transfer a suit filed in a court lacking jurisdiction; parties cannot confer jurisdiction by consent

  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR

    Reaffirmed Kagenyi principle; parties cannot consent to confer jurisdiction

  • In Re the Matter of the Interim Independent Electoral Commission

    Jurisdiction of courts derived from Constitution or legislation

  • Gatirau Peter Munya v Dickson Mwenda Kithinji and Two Others
    [2014] eKLR

    Interpretation of legislation alongside constitutional provisions

Jurisdiction invoked
Article 162(2)(b) of the Constitution 2010; matter transferred from the High Court by orders of 25 July 2022

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, "Guru Mechanical Engineers Limited v Kibe & another", Case Analysis (2023). Miscellaneous Civil Application 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17756/eng@2023-01-18

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