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ELCDismissedMolo CMELC E025 of 2023· [2024] KEELC 3611 (KLR)

Lelei v Nyakundi & another (Environment & Land Case E034 of 2023) [2024] KEELC 3611 (KLR)

Environment and Land Court (sitting at Kericho, exercising transfer jurisdiction under Section 18 of the Civil Procedure Act)
2 May 2024
LOL. A. Omollo
2,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled you cannot transfer or consolidate a lawsuit filed against someone who was already dead — such a suit is void from the start.

What this practically means

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Executive summary

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This ruling by L. A. Omollo J, delivered virtually at Kericho on 2nd May 2024, determines a Notice of Motion dated 19th June 2023 by Joseph Kibilat Lelei. The Applicant sought, in the alternative, that Nakuru CMELC No. 98 of 2023 (in which he sued John Matura Jerome) continue in Nakuru, that Molo CMELC E025 of 2023 (Matunda/Mutura Olivia Nyakundi & another v Joseph Kibilat Lelei) be transferred to Nakuru for consolidation, or that the Nakuru matter be transferred to Molo, with costs in the cause. He contended he was threatened by the Respondents over suit parcel Nakuru/Kapsita/2517, which he claims to own, and that parallel suits risked inconsistent outcomes. The Respondents, through a replying affidavit of Mutura Olivia Nyakundi, argued the application was an abuse of process, that the Molo court had already determined a similar preliminary objection, that the suit property belongs to the estate of John Matura Jerome (deceased) who died on 30th April 2018, that the Nakuru suit against the deceased was void, and that the Nakuru court lacked territorial jurisdiction. Framing the sole issue as whether the Applicant was entitled to transfer orders, the court applied Section 18 of the Civil Procedure Act, noting the Applicant bore the burden of justifying a transfer. Although both files concerned similar parties and property, both suits were filed after the deceased's death, and the Nakuru suit was instituted in the deceased's own name. Relying on Housing Finance Company of Kenya Limited v Muriu (Deceased), the court held the Nakuru suit a nullity; there was nothing to transfer or consolidate. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicant is entitled to transfer/consolidation orders over the Nakuru and Molo suits.

Holding

The application was dismissed; the Nakuru suit filed against a deceased person is a nullity, leaving nothing to transfer or consolidate.

Reasoning

Section 18 of the Civil Procedure Act donates power to the High Court to transfer suits, but the power is discretionary and the Applicant had to justify the transfer. The court perused both files and found the suit property and parties similar, but both suits were filed after the death of John Matura Jerome on 30th April 2018, and the Nakuru suit was instituted in the deceased's name. Relying on Housing Finance Company of Kenya Limited v Muriu (Deceased), the court held such a suit is a nullity.

p. 5
02

Jurisdiction of the Nakuru magistrate's court over the suit property situated in Molo sub-county.

Holding

The Respondents contested the Nakuru court's territorial jurisdiction, but the court disposed of the application on the nullity point without making a definitive finding on territorial jurisdiction.

Reasoning

The Respondents deposed and submitted that the Nakuru court lacked jurisdiction because the suit property is within Molo sub-county, and that the Molo court had already determined a preliminary objection on jurisdiction. The court noted these submissions but resolved the application on the ground that the Nakuru suit was a nullity, making the jurisdiction question and the transfer question moot.

p. 3

Legal principles established

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  • A suit instituted against a person who is already dead is a nullity and there is nothing capable of being transferred or consolidated.
  • A party seeking transfer of a matter from one court to another bears the burden of providing sufficient reasons why the transfer is merited.

Court orders

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  1. 1.The application dated 19th June 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 18(1) and 18(2)

Cases cited (3)

  • Benjamin Leonard Mc Foy v United Africa Company Limited
    (1961) All ER 1169
  • Viktar Maina Ngunjiri & 4 Others v AG & 6 Others
    HCC NAI NO. 21 of 2016 (2018) eKLR
  • Housing Finance Company of Kenya Limited v Muriu (Deceased)
    Civil Appeal 281 of 2011 [2024] KEHC 419 (KLR) (Civ) (24 January 2024) (Ruling)
Jurisdiction invoked
Section 18 of the Civil Procedure Act (power of the High Court to transfer and withdraw suits pending in subordinate courts)

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, "Lelei v Nyakundi & another (Environment & Land Case E034 of 2023) [2024] KEELC 3611 (KLR)", Case Analysis (2024). Molo CMELC E025 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3611/eng@2024-05-02

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