Walter Were (Suing on behalf of the Applicants) v Respondent
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#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
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.
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.
Whether the application for transfer and consolidation was meritorious
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 02/10/2023 is dismissed
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Sections 18 and 89 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.