[2019] KEELC 3978 (KLR)
The court found that the applicants failed to provide the value of the suit property, which is essential to determine whether the magistrate’s court has pecuniary jurisdiction. The court also observed that the subordinate court is competent to hear and determine the matter as presented. No sufficient justification...
Source-derived case information.
- Citation
- [2019] KEELC 3978 (KLR)
- Parties
- Plaintiff: Abdi Rashid Mukwana; Plaintiff: Samuel Simiyu Wangatia; Plaintiff: Judith Wanjiru Wachira (Suing as Office Bearers of Muliro Market Kamukunji); Defendant: County Government of Trans-Nzoia; Defendant: G.H. Tanna & Sons Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 5 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to Environment and Land Court
- Outcome
- application dismissed with costs
- Judges
- FM Njoroge
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Pecuniary Jurisdiction, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Rashid Mukwana
Plaintiff
Samuel Simiyu Wangatia
Plaintiff
Judith Wanjiru Wachira (Suing as Office Bearers of Muliro Market Kamukunji)
Plaintiff
County Government of Trans-Nzoia
Defendant
G.H. Tanna & Sons Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to Environment and Land Court
Legal Issues
- 1 Whether the Environment and Land Court should transfer Kitale Chief Magistrate Land Case No. 75 of 2018 to itself for hearing and disposal.
- 2 Whether the magistrate's court has jurisdiction to hear and determine the suit given the value and subject matter of the land.
- 3 Whether the issues raised are res judicata in light of Kitale ELC No. 64 of 2011.
Ratio Decidendi
The court found that the applicants failed to provide the value of the suit property, which is essential to determine whether the magistrate’s court has pecuniary jurisdiction. The court also observed that the subordinate court is competent to hear and determine the matter as presented. No sufficient justification was provided for transferring the suit to the Environment and Land Court. The court further noted that the issues of res judicata and jurisdiction should be addressed in the lower court. Consequently, the application to transfer the suit was dismissed, and the lower court was directed to proceed with the hearing and determination of the matter.
Court Disposition
application dismissed with costs
Orders
- The application dated 27/2/2019 is dismissed with costs.
- The lower court file shall be returned to the magistrate's court forthwith for hearing and determination.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC MISC. APPL. NO. 5 OF 2019
ABDI RASHID MUKWANA…..………..…1ST PLAINTIFF
SAMUEL SIMIYU WANGATIA…………2ND PLAINTIFF
JUDITH WANJIRO WACHIRA (Suing as Office Bearers of
MULIRO MARKET KAMUKUNJI….…..3RD PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF TRANS-NZOIA.......1ST DEFENDANT
G.H. TANNA & SONS LTD…………..2ND DEFENDANT
RULING
1. The applicant filed an application dated 27/2/2019 seeking orders:-
(1) That the application be certified urgent.
(2) That this honourable court be ordered to transfer of the Kitale Chief Magistrate land Case No. 75 of 2018 to Kitale ELC court for hearing and disposal.
(3) That the costs of the application be in the cause.
2. This Application is premised on several grounds which appear at the foot of the application and in the supporting affidavit of the 1st applicant sworn on 27/2/2019. Briefly they are that the 2nd respondent has come on board the suit before the Chief Magistrates court and it is apparent that the new claim touchers of the ownership of the land whereas the claim between the applicants and the 1st respondent in the same suit was initially to prevent demolition of the property; that the value of the suit property exceeds the pecuniary jurisdiction of the magistrate’s court; that there is a related matter Kitale ELC No. 64 of 2011; that the issues raised directly if this litigation affects the applicants as they are involved in both and therefore the decision thereof should be made by this court.
3. The sworn replying affidavit sworn by David Nyakango Onyancha was filed 8/3/2019 in opposition to the application. In that affidavit the deponent avers that he handles this matter on behalf of the 2nd respondent, that this court has no jurisdiction to determine this application, that the jurisdiction is an issue that should have been raised in the magistrate’s court; that the applicants have not the value of the suit land herein; that the applicants instituted the lower court suit they now seek to transfer and the issues in Kitale ELC No. 64 of 2011are all res judicata and no appeal was filed by any party to challenge the judgment that vested the ownership of the suit land in the 2nd respondent
4. On 13/3/2019 when this matter came up before me I ordered that the subordinate court file be attached to this file record and be brought up for consideration as a ruling on the instant application is being prepared.
5. However I have examined the application dated 27/2/2019 and the supporting affidavit I find that this matter concerns two plots whose value is not given in the application before me. I have also noticed that in the circumstances obtaining the subordinate court is capable of hearing and determining this matter. I am therefore of the view that no proper justification has been given for proposal to have the suit before the lower court transferred to this court for hearing and final determination.
6. For those reasons the application dated 27/2/2019 is hereby dismissed with costs. The lower court file shall be returned to that court forthwith for hearing and determination.
Dated, signedanddelivered atKitale on this 27th day of March, 2019.
MWANGI NJOROGE
JUDGE
27/03/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Onyancha for the 2nd defendant/respondent
Mr. Karani for applicants/plaintiffs
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
27/03/2019