Kimingi

STELLA JEAN WANJA MUNYA .............................................. 15TH RESPONDENT RUTH NJOKI NYAGA ............................................................... 16TH RESPONDENT AGNES GICUKU NJERI ............................................................ 17TH RESPONDENT AND TEMPO CO-OPERATIVE SAVINGS AND CREDIT SOCIETY LIMITED ................................................................................... INTERESTED PARTY RULING 1. Before Court is the Applicant’s Notice of Motion Application dated 3/7/2024 expressed under Sections 1A, 1B, 3A and 18 of the Civil Procedure Act seeking orders THAT; a. Spent. b. Spent. c. This Honorable Court be pleased to order the transfer of Ruiru CMELC No. E016 of 2024; David Thuo Kimingi V Githunguri Constituency Ranching Company Ltd & Others to this Court for trial and nal disposal. d. The costs of this Application be provided for. 2. The Application is premised on the grounds that Ruiru CMELC No. E016 of 2024; David Thuo Kimingi Vs. Githunguri Constituency Ranching Company Ltd & Others (hereinafter the lower Court suit) is pending hearing and determination in the subordinate Court. That the subject matter therein is L.R No. Ruiru Kiu Block 2 (Githunguri)/2329 which was subdivided into ten portions namely; Ruiru Kiu Block 2 (Githunguri)/10346, 10347, 10348, 10349, 10350, 10351, 10352, 10353, 10354 and 10355. That the plainti therein seeks cancellation of the title deed which was fraudulently issued and reversion of the suit land to the estate of the deceased person, Jane Ngoiri Kio. That at the time of ling the lower Court suit, the subordinate Court had requisite jurisdiction but the Respondent’s valuation reports reveal that the suit land exceeds Kshs. 20 Million which is beyond the pecuniary jurisdiction of the subordinate Court prompting this Application. 3. In his undated Supporting Adavit, David Thuo Kimingi the Applicant rehashed the above grounds and annexed a copy of the Amended Plaint dated 15/3/2024 led in the lower Court marked as ‘DTK-1’. He urged the Court to exercise its powers under Section18 of the Civil Procedure Act to transfer the lower Court le to this Court as prayed. 4. The Application is opposed. The 1st Respondent through the rm of Kanyi Kiruchi & Co. Advocates led Grounds of Opposition dated 20/8/2024 on the following grounds; a. That the said Application is devoid of any merit scandalous and an abuse of the Court process. b. That this Court cannot transfer a nullity since the subject matter in Ruiru CMELC No. E016 of 2024 in relation to L.R No. Ruiru Kiu Block 2 (Githunguri)/2329 which has since both (sic) subdivided to 10 portions to wit Ruiru Blcok 2 (Githunguri) 10346 – 10355 exceeds the pecuniary jurisdiction of the Ruiru Court hence the suit is a non-starter void ab initio incapable of transfer. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13419/eng@2024-11-18 2

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c. That the Application should be dismissed with costs. 5. In a rejoinder the Applicant led a Further Adavit dated 10/9/2024. He averred that as a result of the aforesaid subdivisions separate titles whose pecuniary value is well within the jurisdiction of the subordinate Court. The copies of each parcel green card are annexed as ‘DTK-1’. That none of the Respondents’ valuation reports (DTK-2) produced show that the plots independently exceed Kshs. 2.5 Million. That the suit is not a nullity as pleaded because at the time of ling the suit, the Court was well vested with jurisdiction to entertain it. 6. The Application was argued orally before Court on 17/9/2024. The Applicant also led a List of Authorities dated 10/9/2024 which I have considered. 7. The sole issue for determination is whether the Application is merited. 8. A glean of the Amended Plaint dated 15/3/2024 shows that the Applicant herein led suit before the Chief Magistrate’s Court in Ruiru Chief Magistrate’s Court involving a dispute of a parcel of land No. Ruiru/Kiu Block 2 (Githunguri)2369 measuring approximately 1.25 acres (the suit land). That the suit land was allocated to the late Jane Ngoiri vide ballot No. 2328 and Share Certicate No. B-4508. The Applicant avers that the suit land was later subdivided into ten portions and upon valuation by the Respondents the monetary value of the parcels exceeded the Chief Magistrate’s Court jurisdiction. The Applicant avowed that at the time of ling the suit, the Subordinate Court was well vested with jurisdiction to entertain the suit and urges the Court to allow the Application. The suit land value is currently over Kshs. 20 Million. Accordingly the Chief Magistrate’s Court pecuniary jurisdiction limited to Kshs. 20 Million is ousted hence the Application. 9. In rebuttal, the Respondents contended that the Application is unmerited as this Court cannot transfer a nullity because the suit was led in a Court devoid of jurisdiction. 10. Section 18 of the Civil Procedure Act bestows upon the High Court (read ELC) the powers to transfer suits of a civil nature. The said provisions of the law provides as follows; “ (1) (2) On the Application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit or other proceeding pending in any Court subordinate to it, and thereafter— (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. Where any suit or proceeding has been transferred or withdrawn as aforesaid, the Court which thereafter tries such suit may, subject to any special directions https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13419/eng@2024-11-18 3

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in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.” 11. The power to transfer a suit is discretional and therefore a party seeking to transfer a matter from one Court to another has the burden of providing sucient reasons as to why the transfer is merited. However, a matter can only be transferred if the Court from which the Applicant is seeking to have the same transferred from, had jurisdiction over the said matter in the rst instance. 12. Evidently the record before Court shows that the issue of pecuniary value of the suit land was introduced by the Respondents vide a valuation report annexed as DTK-2 dated 7/6/2024 by Oliva Ltd. The valuation is in respect of the ten-subdivisions of the suit land namely Ruiru Kiu Block 2 (Githunguri) 10346 – 10354. DTK-4 is a copy of the plaint led in the subordinate Court dated 15/1/2024 which was exclusively for the suit land without the subdivisions as contained in the Amended Plaint dated 16/3/2024. Interalia in his plaint, the Applicant prayed for declaratory orders arming his ownership of the suit land and the monetary value of the suit land was not an issue. 13. The Applicant further averred that he led his suit in the Subordinate Court in good faith believing the Court was clothed with jurisdiction. Other than contending that the suit is a nullity, the Respondents have not demonstrated any prejudice they stand to suer as a result of transferring the suit for hearing and determination by this Court. In light of the forgoing I nd that the suit was properly led initially before a Court of competent jurisdiction. 14. The powers of this Court are vested by Article 162(2)(b) of the Constitution of Kenya as read with Section 13 of the Environment and Land Court Act (ELCA). The exercise of this Court’s powers is guided by both the Constitution of Kenya and Statute and in particular Articles 48 and 159 of the Constitution of Kenya and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. 15. Faced with a similar issue at hand, the Court in the case of John Mwangi Karanja Vs. Alfred Ndiangui [2011] eKLR held that:“ With the enactment of Sections 1A and 1B of the Civil Procedure Act, the time has perhaps now come for this matter of transfer of suits to be looked at afresh...It appears to me that transfer of suits from one Court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit nds itself in the wrong Court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate Court with jurisdiction so that the issues in dispute can be properly and nally adjudicated. What prejudice would a party suer in that invent? After all, the overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate and aordable resolution of the civil disputes governed by the Act (Section 1A (1). The Court itself is enjoined by subsection (2) of that section to seek to give eect to the said overriding objective in exercise of its powers under the Act or the interpretation of any of its provisions.” 16. In a bid to uphold the Overring objectives of the Court under the Civil Procedure Act, the Respondents’ proposal to decline the Application would not in my view ensure ends of justice are met. I say so because as it is there is a case before the Chief Magistrate’s Court which according to the Applicant, he was advised to take appropriate steps to move it into this Court for determination. The Respondents have not controverted this averment. Requiring the Applicant to le afresh suit herein would no doubt attract Court fees on his part yet he already paid the same as at that time he led his suit at Ruiru. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13419/eng@2024-11-18 4

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17. The upshot of the foregoing is that the Application dated 3/7/2024 is merited. It is allowed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 18TH DAY OF NOVEMBER, 2024 VIA MICROSOFT TEAMS. J G KEMEI JUDGE Delivered online in the presence of; Kipngetich HB Mwangi for the Applicant 1st – 17th Respondents - Absent Court Assistant – Phyllis https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13419/eng@2024-11-18 5

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