Kiruja & another (Suing as the Administrators and Legal Representatives of the Estate of Julius Kiruja M’mbwithia - Deceased) v Mbwithia & 3 others (Miscellaneous Application E017 of 2023) [2024] KEELC 988 (KLR)

Environment and Land Court

21 February 2024

CNCK Nzili

288 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~1 min to read original · ~4 min brief

The bottom line

What this practically means

Executive summary

This was an application seeking the transfer of Githongo ELC Case No. E025 of 2021 from Githongo Law Courts to Nkubu Law Courts for consolidation with ELC No. 2020 for hearing. The application, supported by an affidavit sworn by the applicant Zakayo Gituma Kirunja on 24 October 2023, explained that both suits concern L.R No. Abothuguchi/Kariene/3000, with the applicants as plaintiffs in the Githongo case and the 4th respondent as plaintiff in the Nkubu case. The applicants contended that the parties were the same, the subject matter was the same, and the issues in dispute were common, and that no party would be prejudiced by the transfer. The application was served on the respondents on 20 November 2023, with an affidavit of service filed on 22 November 2023. The court, relying on Section 18(1)(b) of the Civil Procedure Act, noted that the power to transfer suits between subordinate courts may be exercised suo moto or on application, guided by balance of convenience, expense, the interest of justice and possible undue hardship. Finding that the parties, subject matter and issues were common to both suits, and that the jurisdiction of the court was appropriately invoked, the court granted the orders sought and made no order as to costs.

Key legal issues

Transfer of suits between subordinate courts under Section 18(1)(b) of the Civil Procedure Act

Holding

The application was granted because the parties, subject matter and issues in dispute are common to both suits, so consolidation in one court serves the interest of justice without prejudice to any party.

Reasoning

The court confirmed its jurisdiction under Section 18(1)(b) of the Civil Procedure Act to transfer suits between subordinate courts, either suo moto or on application. The governing considerations are balance of convenience, expense, the interest of justice and possible undue hardship. Here the same parties were litigating over the same parcel of land, L.R No. Abothuguchi/Kariene/3000, in two separate courts. The applicants averred no party would be prejudiced by the transfer. The court found jurisdiction properly invoked and granted the orders sought.

p. 2

Legal principles established

The power to transfer a suit from one subordinate court to another is granted to the court under Section 18(1)(b) of the Civil Procedure Act, exercisable suo moto or on application.
The considerations for transfer include balance of convenience, questions of expense, interest of justice and possibilities of undue hardship.

Court orders

1.Githongo ELC Case No. E025 of 2021 transferred to Nkubu Law Courts for consolidation with ELC No. 2020 for hearing
2.No order as to costs

Authorities

Legislation

Civil Procedure ActSection 18(1)(b)

Jurisdiction invoked: Section 18(1)(b) of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kiruja & another (Suing as the Administrators and Legal Representatives of the Estate of Julius Kiruja M’mbwithia - Deceased) v Mbwithia & 3 others (Miscellaneous Application E017 of 2023) [2024] KEELC 988 (KLR)", Case Analysis (2024). Misc Application No E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/988/eng@2024-02-21

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