[2008] KEHC 224 (KLR)
The court held that since the Magistrate's Court lacked jurisdiction to hear the land dispute concerning the cancellation of a title deed, the suit before it was a nullity. As established in Kagenyi v Musirano & others, a suit that is a nullity for want of jurisdiction cannot be transferred to the High Court for...
Source-derived case information.
- Citation
- [2008] KEHC 224 (KLR)
- Parties
- Applicant: Christine Chesiminy; Respondent: The Board of Trustees Kaptebengwo Women Group; Respondent: The Chairman Kaptebengwo PEFE Church; Respondent: Boniface Kimetto
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Appeal 67 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
- Outcome
- application dismissed
- Legal Topics
- Jurisdiction of Courts, Transfer of Suits, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Chesiminy
Applicant
The Board of Trustees Kaptebengwo Women Group
Respondent
The Chairman Kaptebengwo PEFE Church
Respondent
Boniface Kimetto
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to High Court
Legal Issues
- 1 Whether the High Court can transfer a suit from the Magistrate's Court where the Magistrate's Court lacked jurisdiction to hear the matter.
- 2 Whether a suit filed in a court without jurisdiction can be transferred to a court with jurisdiction.
Ratio Decidendi
The court held that since the Magistrate's Court lacked jurisdiction to hear the land dispute concerning the cancellation of a title deed, the suit before it was a nullity. As established in Kagenyi v Musirano & others, a suit that is a nullity for want of jurisdiction cannot be transferred to the High Court for further hearing. The only remedy available to the applicant is to withdraw the suit from the Magistrate's Court and file a properly constituted suit in the appropriate court. Consequently, the application to transfer the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application to transfer the suit from the Magistrate's Court to the High Court is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Misc. Civ. 67 of 2008
CHRISTINE CHESIMINY……………........................................……………………… APPLICANT
VERSUS
THE BOARD OF TRUSTEES KAPTEBENGWO WOMEN GROUP....1ST DEFENDANT/RESPONDENT
THE CHAIRMAN KAPTEBENGWO PEFE CHURCH.............2ND DEFENDANT/RESPONDENT
BONIFACE KIMETTO …….………..................................…... 3RD DEFENDNAT/RESPONDENT
RULING
1: Background
1. The Plaintiff/applicant had filed a land matter in the Magistrate’s Court at Sotik praying for a permanent injunction to restrain the defendant/respondent from dealing with a certain land parcel being LR Kericho/Boito/1456.
2. I do not have before me that original file, but the applicant informs the court that a trail indeed commenced before a magistrate. The said magistrate was transferred. When a new magistrate took over the matter, that new magistrate made an order upon the file declaring that he had not jurisdiction to hear that matter. Namely
“I note that there is a title deed which is being challenged. This court has (no) jurisdiction to cancel a title deed even if it was found to have been fraudulently obtained. The parties are advised to move the High Court for conclusive determination of this suit. In the meantime matter stood over generally. Status quo remain.
Signed 31st May, 2007”.
3. The Plaintiff/applicant accepted this position and filed within 14 days, this application before me seeking orders from the High Court under Section 18 of the Civil Procedure Act to transfer the Lower Court case to the High Court of Kenya at Kericho.
4. The main grounds for this, is that the trial magistrate had no jurisdiction to entertain the said suit.
5. The respondent/defendant participated in the part heard case. They attempted to file a replying affidavit which was rejected as having been filed out of time.
III: Findings
6. The applicant concedes that the trial magistrate had no jurisdiction to hear the land case. This therefore meant that only the High Court would have heard the case.
7. In the case law of Kagenyi v Musirano & other 1968 EA 43 a similar situation arose. It was established therein that if the lower court, where the original suit was first filed, had no jurisdiction then the whole suit was an illegality before that Court. You can therefore not transfer an illegal suit to the High Court for further hearing.
8. The applicant may require to withdraw their case in the Subordinate Court and file a properly constituted suit in the appropriate Court.
9. As it stands the application is accordingly dismissed, with no costs to the respondents as no reply was filed on time.
DATED this 17th day of December, 2008 at Kericho.
M.A. ANG’AWA
JUDGE
Advocate
V.K Bii & Co. advocates for the Plaintiff/applicant
J.M. Motanya & Co. advocates for the Defendant/Respon