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ELCDismissedMiscellaneous Application (Notice of motion dated 17th January 2024) relating to Civil Suit No 4053 of 2015· [2024] KEELC 6648 (KLR)

Gichuki v New Nyamakima Limited (Environment and Land Miscellaneous Application E006 of 2024) [2024] KEELC 6648 (KLR)

High Court of Kenya
27 June 2024
1,461 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The High Court of Kenya ruled that a lawsuit filed in the wrong court cannot be rescued by transfer — it must be filed afresh in the correct court.

What this practically means

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Executive summary

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This judgment of the High Court of Kenya at Nairobi (M.D. Mwangi J) determines a notice of motion dated 17th January 2024 by the Applicant (the Defendant in Civil Suit No 4053 of 2015, New Nyamakima Ltd v John Mugo Gichuki, pending before the Milimani Chief Magistrate's Court), seeking transfer of that suit to the High Court. The Applicant argued that his counter-claim, originally for approximately Kshs 19,000,000, had risen above Kshs 20,000,000 and thus beyond the Chief Magistrate's pecuniary jurisdiction. The Respondent opposed, contending that want of pecuniary jurisdiction is not a ground for transfer, that the judgment of 17th July 2023 relied on had been set aside, and that no good ground for transfer existed. The court directed that the application be canvassed by written submissions. The court first ruled that facts appearing only in submissions, and not in the supporting affidavit, would be disregarded, submissions not being evidence. On the sole issue - whether the suit could lawfully be transferred on the grounds advanced - the court followed the binding Court of Appeal decision in Equity Bank Ltd v Bruce Mutie Mutuku t/a Diani Tour Travel, holding that a suit filed in a court lacking jurisdiction is incompetent and a nullity, and cannot be transferred under section 18 of the Civil Procedure Act so as to sanctify it. Neither the overriding objective nor Article 159 of the Constitution, nor parties' consent, can cure a jurisdictional defect. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether a suit pending before the Magistrate's court whose claim has exceeded the court's pecuniary jurisdiction can be transferred to the High Court under section 18 of the Civil Procedure Act

Holding

No. Transfer cannot sanctify an incompetent suit; a suit filed in or exceeding a court's jurisdiction is a nullity and cannot be transferred.

Reasoning

The court relied on the binding Court of Appeal decision in Equity Bank Ltd v Bruce Mutie Mutuku, holding that a court lacking jurisdiction cannot entertain a suit, and such a suit cannot be transferred to a competent court because no competent suit exists to transfer. The oxygen principle and Article 159 cannot remedy a jurisdictional defect, and want of jurisdiction is expressly no ground for transfer.

p. 3
02

Whether facts appearing only in submissions but not in pleadings or affidavit evidence can be relied upon

Holding

No - submissions are not pleadings or evidence.

Reasoning

The court held that a party cannot use submissions to do what should have been done by pleadings and evidence, citing Mwera J's dictum that submissions simply concretize and focus a party's case but are not evidence on which a case is decided. It therefore disregarded the contextual background facts stated in the Applicant's submissions but not in the supporting affidavit.

p. 2

Legal principles established

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  • A suit filed in a court lacking jurisdiction cannot be transferred under section 18 of the Civil Procedure Act to a court with jurisdiction; it is a nullity and incapable of transfer.
  • Parties cannot confer jurisdiction on a court by consent, nor can jurisdictional defects be cured by the overriding objective or Article 159 of the Constitution.

Court orders

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  1. 1.The Notice of motion dated 17th January 2024 seeking transfer of Civil Suit No 4053 of 2015 from the Chief Magistrate's Court at Milimani to the High Court is dismissed
  2. 2.Costs awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 18
  • Constitution of Kenya 2010Article 159
  • Appellate Jurisdiction Actoverriding objective (O2 principle) as referenced

Cases cited (5)

  • Ogando v Watu Credit Ltd & another
    (Civil Suit No E098 of 2022) (2024) KEHC 3074 (KLR)
  • Gaika Kimani Kiarie v Peter Kimani Kiramba
    (2020) eKLR
  • Equity Bank Ltd v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Boniface Waweru Mbiyu v Mary Njeri & another
    (2005) eKLR
  • Erastus & another (Kisumu) HCCA No 46 of 2007
Jurisdiction invoked
Sections 18 and 3A of the Civil Procedure Act (transfer jurisdiction); the application itself invoked the overriding objective and Article 159 of the Constitution

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, "Gichuki v New Nyamakima Limited (Environment and Land Miscellaneous Application E006 of 2024) [2024] KEELC 6648 (KLR)", Case Analysis (2024). Miscellaneous Application (Notice of motion dated 17th January 2024) relating to Civil Suit No 4053 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6648/eng@2024-06-27

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