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ELCDismissedEnvironment & Land Miscellaneous Case 22 of 2023· [2023] KEELC 21292 (KLR)

Aamrin v Meroka & another

Environment and Land Court
3 November 2023
AOA O Ombwayo
2,492 words in judgment
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The bottom line

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A Kenyan court refused to transfer a land case filed in the wrong town, ruling that a suit filed in a court without jurisdiction is a legal nullity that cannot be fixed by transfer.

What this practically means

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Executive summary

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Fathima Aamrin applied by notice of motion dated 19th September 2023 for the transfer of Nakuru CM ELC No. E063 of 2023 (a suit over a transaction concerning L. Residential Plot No. H-Kericho Municipality Parcel No. 503) from the Chief Magistrates' Court at Nakuru to the Chief Magistrates' Court at Kericho, on the basis that the immovable property is situated at Kericho and the Nakuru court lacked territorial jurisdiction. The 2nd defendant had raised a preliminary objection on jurisdiction, and the 1st defendant filed grounds of opposition arguing that a suit filed in the wrong forum is incompetent ab initio and cannot be transferred. Ombwayo J considered section 18 of the Civil Procedure Act and the line of authority from Kagenyi v Musiramo through Abraham Mwangi Wamigwi, Wamathu Gichoya and Boniface Waweru Mbiyu, holding that a suit filed in a court without jurisdiction is a nullity, incompetent and incapable of transfer; courts can only transfer a cause whose existence the law recognises. Because the applicant herself premised the application on the Nakuru court's lack of jurisdiction, there was nothing capable of being transferred. The application was dismissed with costs on 3rd November 2023.

Key legal issues

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01

Whether the ELC can transfer a suit filed in a subordinate court lacking territorial jurisdiction

Holding

No - a suit filed in a court without jurisdiction is a nullity, incompetent and incapable of being transferred; the transfer power under section 18 applies only where the court from which transfer is sought had jurisdiction

Reasoning

The court relied on Kagenyi v Musiramo as cited in later authorities: an order for transfer cannot be made unless the suit was first brought to a court with jurisdiction to try it. Citing Owners of Motor Vessel Lillian S, jurisdiction is everything; where a court lacks jurisdiction it must down its tools. A nullity cannot be moulded into something by 'transfer'. Since the applicant herself grounded the application on want of jurisdiction at Nakuru, the application failed.

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Burden on an applicant seeking transfer

Holding

The applicant bears the burden of providing sufficient reasons why the transfer is merited, and must make out a strong case considering balance of convenience, expense, interests of justice and hardship

Reasoning

The court restated the principles from David Kabungu as cited in Kithita Ngeana v Mwaniki Kisume: the onus is on the party applying for transfer to make out a strong case to the satisfaction of the court, and where the court is left in doubt the application must be refused. The applicant failed to discharge this burden.

p. 4

Legal principles established

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  • 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 court where it ought to have been instituted
  • Transfer of suits under section 18 of the Civil Procedure Act is discretionary where the suit is filed in a court with jurisdiction

Court orders

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  1. 1.The application dated 19th September 2023 seeking transfer of Nakuru CM ELC No. E063 of 2023 to the Chief Magistrates' Court at Kericho is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Civil Procedure Actsection 18
  • Civil Procedure Actsections 1A and 1B

Cases cited (10)

  • John Mwangi Karanja v Alfred Ndiangui
    [2011] eKLR

    Transfer of suits is a procedural issue; wrong-court suits should be forwarded to the appropriate court in the interests of justice and the overriding objective

  • Kithita Ngeana v Mwaniki Kisume
    [2018] eKLR

    Circumstances for granting transfer; onus on applicant to make out a strong case; want of jurisdiction is no ground for transfer

  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    [2012] eKLR

    Section 18 transfer powers cannot be exercised where the suit was filed in a court without jurisdiction (citing Kagenyi v Musiramo)

  • Wamathu Gichoya v Mary Wainoi Magu
    [2015] eKLR

    If the suit filed is incompetent, the High Court lacks jurisdiction to effect a transfer

  • The Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    (1989) KLR 1

    Jurisdiction is everything; a court without jurisdiction must down its tools

  • Kagenyi v Musiramo

    An order for transfer cannot be made unless the suit was first brought to a court with jurisdiction to try it

  • Ali Abdi Sheikh v Edward Nderitu Wainaina & Others

    Suit filed in subordinate court beyond its jurisdiction cannot be transferred under section 18

  • Rainbow Manufacturers Limited v National Bank of Kenya

    Similar view that transfer powers cannot be exercised where the filing court lacked jurisdiction

  • Boniface Waweru Mbiyu v Mary Njeri & Another

    A matter filed before a court lacking jurisdiction is a nullity, incompetent and void, with no capacity to be transferred

  • David Kabungu Case

    Principles for transfer: strong case, balance of convenience, expense, interests of justice, undue hardship

Jurisdiction invoked
Article 162(2) of the Constitution of Kenya and the Environment and Land Court Act; section 18 of the Civil Procedure Act (Cap 21)

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, "Aamrin v Meroka & another", Case Analysis (2023). Environment & Land Miscellaneous Case 22 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21292/eng@2023-11-03

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