[2023] KEELC 22605 (KLR)
The court declined the application for transfer because the applicant failed to attach the pleadings from the Keroka Principal Magistrate's Court, making it impossible for the court to determine whether it had jurisdiction or whether the transfer was warranted. The court held that reliance on article 159(2)(d) of...
Source-derived case information.
- Citation
- [2023] KEELC 22605 (KLR)
- Parties
- Applicant: Ben Obangi Gekonge; Respondent: Francis Onkoba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E005 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application declined
- Judges
- JM Kamau
- Legal Topics
- Transfer of Suit, Jurisdiction, Pleadings Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Obangi Gekonge
Applicant
Francis Onkoba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the applicant provided sufficient material to enable the court to determine the application for transfer of suit.
- 2 Whether the absence of pleadings from the lower court case precludes the grant of the transfer order.
- 3 Whether article 159(2)(d) of the Constitution can cure the applicant's failure to attach necessary documents.
Ratio Decidendi
The court declined the application for transfer because the applicant failed to attach the pleadings from the Keroka Principal Magistrate's Court, making it impossible for the court to determine whether it had jurisdiction or whether the transfer was warranted. The court held that reliance on article 159(2)(d) of the Constitution could not cure the omission, as providing necessary material is not a mere technicality but a substantive requirement for judicial decision-making. Without the pleadings, the court could not be moved to grant the orders sought.
Court Disposition
application declined
Orders
- The application dated 15/9/2023 is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
Gekonge v Onkoba (Environment & Land Miscellaneous Case E005 of 2023) [2023] KEELC 22605 (KLR) (25 October 2023) (Ruling)
Neutral citation: [2023] KEELC 22605 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Miscellaneous Case E005 of 2023
JM Kamau, J
October 25, 2023
Between
Ben Obangi Gekonge
Plaintiff
and
Francis Onkoba
Defendant
Ruling
1. This is an Application for transfer of a case from Keroka PM’s court to this court. There are no pleadings, from the Keroka Principal Magistrate’s Court to help this court appreciate the case that the applicant prays that it be transferred to this court. There are only typed proceedings attached to the miscellaneous Application where the trial Magistrate held : -“…. I will not grant any order but advice the parties to file same in a Court with jurisdiction to handle it”
2. It is the duty of the applicant to bring all the facts to the attention of the court that he seeks reliefs from. I am unable to tell whether this court has jurisdiction to entertain the matter filed at Keroka Principal Magistrate’s Court being MC ELC EO11/2023. It may as well be that this court has no jurisdiction to hear and determine the case for one reason or another. What was so difficult in the applicant attaching the pleadings of the Keroka case in this Application? Relying onarticle 159 of the Constitution of Kenya, 2010 does not help the applicant advance his cause. A court will be moved by the material before it and if the same are not sufficient enough to convince the court, article 159 2(d) of the Constitution of Kenya, 2010 will not help him. The Article talks of undue regard to technicalities. It is not an undue technicality to put the material necessary to arrive at a Decision before court. If every time a party comes to court unprepared he falls back to article 159 2(d) of the Constitution this will make Decision making a guess work. The Application dated 15/9/2023 is therefore declined. However, I will spare the applicant the cost of this Application since the respondent never participated in the same and also failure to attach the necessary documents to the Application cannot be attributed to the Applicant
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 25TH DAY OCTOBER, 2023HON. MUGO KAMAUJUDGEIn the Presence of: -Court Assistant – BrendaMr. Gichaba for the ApplicantRespondent – N/A