Osano & another v Miyogo
The bottom line
#A Kenyan court cannot rescue a lawsuit filed in the wrong court — you must withdraw it and file afresh in the right one.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction under section 18 CPA to transfer a suit filed in a subordinate court lacking pecuniary jurisdiction
No. A suit filed without jurisdiction is a nullity ab initio; there is no competent suit capable of being transferred, and the transfer power cannot be used to sanctify an incompetent suit.
Relying on the Court of Appeal decisions in Phoenix of EA Assurance and Equity Bank v Mutie, the court held that where a suit is filed in a court devoid of jurisdiction it is dead on arrival and nothing exists to transfer. The distinction between discretion and jurisdiction means Article 159 and the overriding objective cannot salvage the defect. The applicant's concession that the lower court lacked jurisdiction removed any need for that court to determine the objection.
Whether the overriding objective (sections 1A and 1B CPA) and Article 159(2)(d) can cure a suit filed in a court without jurisdiction
No; the defect is not a mere procedural issue and cannot be cured by Article 159(2)(d) or the overriding objective.
The court adopted the Phoenix holding that parties cannot seek refuge under the O2 principle, the overriding objective, the Appellate Jurisdiction Act or Article 159 to remedy want of jurisdiction. The error of filing in a court bereft of jurisdiction is of pronounced gravity and beyond salvage, leaving no discretion to exercise in the applicant's favour.
Whether prejudice would be occasioned by refusing the transfer
Prejudice was demonstrable: the respondent had commissioned his own valuation report in support of the jurisdiction objection, and the applicant produced no valuation report showing due diligence.
The court observed that a valuation report commissioned before suing would have demonstrated due diligence but none was availed. The respondent had gone to the expense of commissioning his own valuation report in support of the jurisdiction objection, and granting the application would thwart his chance of having that objection heard and determined by the subordinate court.
Legal principles established
#- A suit filed in a court lacking jurisdiction is a nullity and cannot be transferred under section 18 of the Civil Procedure Act to a competent court; the only remedy is to withdraw it and file a compliant suit in a court with jurisdiction
- Parties cannot, even by consent, confer jurisdiction on a court, and the overriding objective or Article 159 cannot cure want of jurisdiction
Court orders
#- 1.The notice of motion dated April 25, 2023 is dismissed with costs to the respondent
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act (power of the High Court to withdraw and transfer cases instituted in subordinate courts)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osano & another v Miyogo", Case Analysis (2023). Miscellaneous Application E019 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19981/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.