Maloba v Shiundu (Civil Appeal 62 of 2019) [2022] KEHC 620 (KLR) (10 June 2022) (Ruling) Neutral citation: [2022] KEHC 620 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA CIVIL APPEAL 62 OF 2019 WM MUSYOKA, J JUNE 10, 2022 BETWEEN PETER MUKHUNYA MALOBA ........................................................... APPELLANT AND DENNIS KUSINYO SHIUNDU ......................................................... RESPONDENT (From judgment and decree of Hon. CC Kipkorir, Senior Resident Magistrate, in Mumias PMCCC No. 164 of 2017, of 8th May 2019) RULING 1. On 26th June 2020, I delivered a judgment in which I dismissed the appeal herein, on grounds that I had no jurisdiction to hear and determine it, as it fell within the jurisdiction of the Environment and Land Court. 2. The appellant has come back to court with an application asking me to review the decree of 26th June 2020, and seeking for an order that I transfer the appeal to the Environment and Land Court. The parties have gone on to file written submissions on the appeal. I wonder how parties can file written submissions on a suit that has been struck out, and, therefore, ceased to exist. Such act is an exercise in total futility 3. Review of a judgment or decree or order is founded on error on the face of the record or discovery of new material or other sufficient reason. The affidavit drawn in support of the application has not sought to demonstrate error on the face of the record or discovery of new material or other sufficient reason. I, therefore, do not see any basis for review of the judgment and decree of 26th June 2020. 4. The Court of Appeal has held, in a number of cases, that where a suit is incompetent, on account of jurisdiction, the court without jurisdiction, has no jurisdiction to transfer it to the court with jurisdiction. The argument is that the appeal is incompetent, and the court ought not to transfer an incompetent suit to the other court, for that court ought not to entertain a suit that was originally incompetent. Secondly, if the court does not have jurisdiction to entertain the suit, there should be https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/620/eng@2022-06-10 1
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no jurisdiction to transfer it. See Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR (Makhandia, Ouko & M’Inoti JJA) and Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service [2019] eKLR (Karanja, Gatembu & Sichale JJA). 5. There is absolutely no merit in the Motion, dated 6th August 2021. The same is for dismissal, and it is hereby dismissed. The respondent filed a preliminary objection to it, I shall, therefore, award him the costs of the application. DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022 WM MUSYOKA JUDGE Erick Zalo, Court Assistant Ms. Luchivya, instructed by Marisio Luchivya & Company, Advocates for the appellant. Mr. Mukoya, instructed by RV Mukoya & Company, Advocates for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/620/eng@2022-06-10 2
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