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ELCDismissedNotice of Motion dated 02/10/2023 in Kitale ELC Case No. 2 of 2022· [2024] KEELC 450 (KLR)

Walter Were (Suing on behalf of the Applicants) v Respondent

Environment and Land Court
31 January 2024
1,911 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 Applicants, through a Notice of Motion dated 02/10/2023 under Sections 18 and 89 of the Civil Procedure Act, sought the withdrawal of Kitale CMCC Land Case No. 137 of 2021 from the magistrates' court and its transfer to the Environment and Land Court at Kitale for consolidation and trial together with Kitale ELC Case No. 2 of 2022, both suits concerning land parcel Trans Nzoia/Kipsoen/1645 and involving the same parties. The Respondent opposed the application as incompetent, an afterthought and an abuse of process. The court framed two issues: whether the application had merit and who should bear costs. It held that transfer under Section 18 presupposes jurisdiction in the transferring court; since the subordinate court's jurisdiction had been affirmed in an unappealed ruling of 04/04/2023, transfer was legally possible in principle. However, on the merits, the court found that the Applicant had himself filed the later suit in the ELC after the subordinate court suit was already pending, and then sought to move the earlier suit to his own chosen forum, creating the very duplicity he complained of. The court held this to be forum shopping, calculated to increase costs and vex the Respondent, and an abuse of the process of the court. The application was dismissed with costs to the Respondent on 31 January 2024.

Key legal issues

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01

Whether the High Court/ELC can withdraw and transfer a suit from a subordinate court under section 18 of the Civil Procedure Act where that court's jurisdiction is not in doubt

Holding

Yes - where the subordinate court has jurisdiction (as confirmed in the unappealed ruling of 04/04/2023), the Court can, if the application is meritorious, withdraw and transfer the suit under section 18(1)(b)(i), but transfer cannot be used to launder a suit filed in a court without jurisdiction.

Reasoning

The court held that jurisdiction is the threshold question in any transfer application, citing Owners of the Motor Vessel 'Lillian'. If the originating court lacked jurisdiction, transfer would be an impermissible sanitisation of a nullity; the remedy is withdrawal or striking out and fresh filing. Here the trial court's ruling that it had jurisdiction was never appealed, so transfer was legally possible in principle, leaving only the question of merit.

p. 3
02

Whether the application for transfer and consolidation was meritorious

Holding

No - the Applicant deliberately filed a later suit in the ELC over the same issues and then sought transfer of the earlier-filed subordinate court suit, creating the very duplicity he complained of; the application was dismissed as an abuse of process.

Reasoning

Both courts had jurisdiction over their respective suits, engaging section 6 of the Civil Procedure Act (stay of the latter suit). Rather than stay or seek transfer of his own later suit, the Applicant asked the court to move the earlier suit to himself. The court found this strategy aimed at indirect forum shopping, increasing costs and vexing the Respondent, and constituted an abuse of process warranting dismissal with costs.

p. 4

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to a court with jurisdiction; transfer under section 18 cannot cure a jurisdictional defect.
  • A party who files a second suit over the same matter in a different court and then seeks transfer of the earlier suit to avoid duplicity abuses the process of the court.

Court orders

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  1. 1.The Notice of Motion dated 02/10/2023 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 18(1)(b)(i)
  • Civil Procedure ActSection 89
  • Civil Procedure ActSection 6

Cases cited (6)

  • Owners of the Motor Vessel “Lillian” -vs- Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another
    [2012] eKLR
  • Kagenyi vs. Musiramo
  • Ali Abdi Sheikh vs. Edward Nderitu Wainaina & Others
  • Rainbow Manufacturers Limited vs. National Bank of Kenya
  • Boniface Waweru Mbiyu vs. Mary Njeri & Another
Jurisdiction invoked
Sections 18 and 89 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, "Walter Were (Suing on behalf of the Applicants) v Respondent", Case Analysis (2024). Notice of Motion dated 02/10/2023 in Kitale ELC Case No. 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/450/eng@2024-01-31

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