[2007] KEHC 1423 (KLR)
The court found that the Senior Resident Magistrate's Court at Limuru lacked pecuniary jurisdiction to hear the suit, as the counterclaim would exceed the court's monetary limit of Ksh.800,000. Citing Kagenyi v Musiramo & Another, the court held that a suit filed in a court without jurisdiction is a nullity and...
Source-derived case information.
- Citation
- [2007] KEHC 1423 (KLR)
- Parties
- Applicant: Agnes Njeri Njoroge; Respondent: Limuru Municipal Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 840 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application for transfer declined.
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Pecuniary Jurisdiction, Building Plan Approval
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Njeri Njoroge
Applicant
Limuru Municipal Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Senior Resident Magistrate's Court at Limuru has jurisdiction to hear the suit given the pecuniary limits.
- 2 Whether the suit can be transferred to the High Court under section 18 of the Civil Procedure Act when the lower court lacks jurisdiction.
- 3 Whether the application for transfer should be granted based on convenience of witnesses and location.
Ratio Decidendi
The court found that the Senior Resident Magistrate's Court at Limuru lacked pecuniary jurisdiction to hear the suit, as the counterclaim would exceed the court's monetary limit of Ksh.800,000. Citing Kagenyi v Musiramo & Another, the court held that a suit filed in a court without jurisdiction is a nullity and cannot be transferred to the High Court under section 18 of the Civil Procedure Act. The proper course is for the defendant to file a fresh suit in the High Court, as the subordinate court's jurisdiction is not admitted. Consequently, the application for transfer was declined.
Court Disposition
Application for transfer declined.
Orders
- The application for transfer under Section 18 Civil Procedure Act is declined.
- Costs awarded to the applicant (original defendant) to be paid by the respondent (original plaintiff).
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 840 of 2007
AGNES NJERI NJOROGE ………….………..…..………. APPLICANT
VERSUS
LIMURU MUNICIPAL COUNCIL ……………....………RESPONDENT
RULING
I: Transfer of suit
1. The application of 24 October 2007 seeks that the Senior Resident Magistrates Court Case at Limuru being No.353/06 be transferred from the said Limuru Subordinate Courts to the Nairobi Environmental Land Case Division for trial and disposal under section 18 of the Civil Procedure Act Cap.21 Laws of Kenya
Accordinging to the copy of plaint annexed therein, the plaintiff Agnes Njeri Njoroge sued the Municipal Council of Limuru for a declaration that failure to approve her building plans amounts to an illegal an unjustifiable action. She also prayed for an injunction restraining the defendants from demolishing her structures and or harassing her.
3. The Municipal Council of Limuru filed this present application for transfer of that said suit to the High Court of Kenya whereby the reasons given is that the witnesses to be called are all situated in Nairobi. It would be correct for the trial to be filed and heard in Nairobi. The other major reasons for transfer is that the Senior Resident Magistrate courts at Limuru has no jurisdiction to hear the suit. The pecuniary powers of the magistrate at Limuru is Ksh.800,000/-. The defendants wish to file a counter claim and this most certainly would exceed the pecuniary jurisdiction of that court. The applicant original defendant has not annexed his defence for perennial by this court. The plaint was filed a year ago being dated 3 October 2006.
4. Most certainly the lower courts does not have jurisdiction to hear the said suit. The plaintiff has been asked to stop construction her suit should have originally been filed in the High Court at Nairobi and not in Limuru.
5. In Kagenyi v Musiramo & Another (1968) EA 43 where the lower court has no jurisdiction to hear a matter that case cannot be transferred to the High Court as it is a nullity.
6. The defendant applicant require to file suit at the High Court of Kenya on grounds that the jurisdiction of the subordinate court is not admitted.
7. I decline to grant this application for transfer under Section 18 Civil Procedure Act. There will be costs to the applicant as the respondent original plaintiff was absent to be paid by the respondent original plaintiff.
Dated this 13th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
E.M. Wachira for E.M. Wachira & Co. Advocates for the Ex parte/applicant original defendant – present
M/s Wariuki & Co. Advocates for the Respondent original plaintiff-absent