Gichuki v New Nyamakima Limited (Environment and Land Miscellaneous Application E006 of 2024) [2024] KEELC 6648 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
No. Transfer cannot sanctify an incompetent suit; a suit filed in or exceeding a court's jurisdiction is a nullity and cannot be transferred.
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.
Whether facts appearing only in submissions but not in pleadings or affidavit evidence can be relied upon
No - submissions are not pleadings or evidence.
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.
Legal principles established
#- 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
#- 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.Costs awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.