[2015] KEHC 3956 (KLR)
The court held that the applicants failed to demonstrate sufficient grounds for the transfer of the suit from the Chief Magistrate's Court to the Environment and Land Court. The application did not comply with the requirements of section 18(b) of the Civil Procedure Act, as it did not seek withdrawal of the suit...
Source-derived case information.
- Citation
- [2015] KEHC 3956 (KLR)
- Parties
- Applicant: Gedion Mbaabu M'Arithi & 5 Others; Respondent: Clement M'Rukunga; Respondent: H. On Lemantili; Respondent: Wilson Kinyua Mutai
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 28 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to Environment and Land Court
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Pecuniary Jurisdiction, Environment and Land Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gedion Mbaabu M'Arithi & 5 Others
Applicant
Clement M'Rukunga
Respondent
H. On Lemantili
Respondent
Wilson Kinyua Mutai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to Environment and Land Court
Legal Issues
- 1 Whether the Chief Magistrate's Court at Meru has jurisdiction to hear the land dispute in CMCC No. 187 of 2011.
- 2 Whether the suit can be transferred to the Environment and Land Court at Meru under section 18 of the Civil Procedure Act.
- 3 Whether the absence of jurisdiction in the lower court renders the suit non-transferable.
Ratio Decidendi
The court held that the applicants failed to demonstrate sufficient grounds for the transfer of the suit from the Chief Magistrate's Court to the Environment and Land Court. The application did not comply with the requirements of section 18(b) of the Civil Procedure Act, as it did not seek withdrawal of the suit from the lower court, nor was there evidence of a ruling by the magistrate declining jurisdiction. Furthermore, if the lower court lacked jurisdiction, the suit was a nullity and could not be transferred. The court found the application unmerited and dismissed it with costs to the respondents.
Court Disposition
application dismissed
Orders
- The application to transfer CMCC No. 187 of 2011 from the Chief Magistrate's Court at Meru to the Environment and Land Court at Meru is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. APPLICATION NO. 28 OF 2013
GEDION MBAABU M'ARITHI & 5 OTHERS.............................................APPLICANT
VERSUS
CLEMENT M'RUKUNGA.................................................................1ST RESPONDENT
H. ON LEMANTILI...........................................................................2ND RESPONDENT
WILSON KINYUA MUTAI................................................................3RD RESPONDENT
R U L I N G
This application, stated to have been brought under Order 18 (1) b(1) of the Civil Procedure Act, seeks orders that:-
A. The Honourable Court be pleased to transfer CMCC No. 187 of 2011 from CHIEF MAGISTRATE'S COURT AT MERU to the ENRIRONMENT AND LAND COURT AT MERU for hearing and determination.
B. Costs of the application.
The application is supported by the affidavit of GEDION MBAABU M'ARITHI and the following grounds:
A. The dispute in the lower court relates to land.
B. The Chief Magistrate at Meru has no pecuniary jurisdiction to hear this matter.
C. That the matter can be resolved conveniently in the Environment and Land Court.
When the application was heard on 8. 5.2015, Mr. Kimathi Kiara for the Plaintiffs/Applicants told the court that he wanted the application to be allowed as it had not been responded to. He told the Court that he had filed the suit in the CM's Court in 2011 as there was no Environment and Land Court.
Mrs Kaume said she was opposing the application on a point of law. She told the court that she had raised a Preliminary Objection in the Lower Court seeking the dismissal of the suit. She argued that if as stated by the applicant, the Lower Court had no jurisdiction, it then followed that the suit in the lower court was non-existent and was, therefore, non-transferable. She advised the Plaintiffs/Applicants to withdraw the suit in the Lower Court and pay the respondents costs.
I do note that the application seeks the transfer of the apposite suit to this Court. It does not as envisaged by section 18(b) of the Civil Procedure Act, seek the suit to be withdrawn from the Lower Court upon which withdrawal the Court would act in accordance with section 18 (b) (i) (ii) of the Civil Procedure Act.
I do note that this suit has been pending in the Chief Magistrate's Court since 2011. It is suspicious that 4 years down the line, the Applicants have suddenly discerned the need to have it heard by this Court.
The affidavit supporting the application states that on 7. 5.2015, the Presiding Magistrate in the Lower Court declined to hear the suit after citing lack of jurisdiction. The ruling or other evidence regarding the refusal of the trial magistrate to hear the suit has not been annexed. Without adducing any proof in evidence, the applicant in paragraph 6 of Gedion Mbaabu M'Arithi's supporting affidavit merely avers that the suit land has a value of Kshs.30,000,000/=
Having considered the averments of the parties and their submissions, I find that the applicants have not shown to the satisfaction of this Court that the application should succeed. In the circumstances, the application is dismissed.
Costs of the application are awarded to the respondents.
It is so ordered.
Delivered in Open Court at Meru this 18th day of June, 2015 in the presence of:
Cc Lilian/Daniel
Harun Gitonga h/b Kimathi Kiara for Plaintiff
P. M. NJOROGE
JUDGE