[2007] KEHC 3559 (KLR)
The court found that the Chief Magistrate's Court lacks jurisdiction to grant the relief sought against the Attorney General under the Registration of Title Act, as the Act defines 'court' to mean only the High Court. Since a court without jurisdiction cannot transfer a suit, the application to transfer the suit...
Source-derived case information.
- Citation
- [2007] KEHC 3559 (KLR)
- Parties
- Plaintiff: Joseph Kabeni Matheri; Defendant: Attorney General; Defendant: John Githinji Mwangi; Defendant: Jeremiah Githinji Mahugu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 403 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed with costs to the state
- Legal Topics
- Transfer of Suit, Jurisdiction of Courts, Residence of Defendant, Registration of Title, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kabeni Matheri
Plaintiff
Attorney General
Defendant
John Githinji Mwangi
Defendant
Jeremiah Githinji Mahugu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the Chief Magistrate's Court has jurisdiction to hear and determine prayers against the Attorney General under the Registration of Title Act.
- 2 Whether the suit filed at Nairobi Milimani Commercial Court can be transferred to Thika Chief Magistrate's Court given the jurisdictional objections.
- 3 Whether the requirement that suits be filed where defendants reside applies in this case.
Ratio Decidendi
The court found that the Chief Magistrate's Court lacks jurisdiction to grant the relief sought against the Attorney General under the Registration of Title Act, as the Act defines 'court' to mean only the High Court. Since a court without jurisdiction cannot transfer a suit, the application to transfer the suit from Nairobi Milimani Commercial Court to Thika Chief Magistrate's Court must fail. The objection by the state was upheld, and the application was dismissed with costs to the state. The court relied on the principle established in Kagenyi v Musiramo (1968) EA 43 that a court without jurisdiction cannot transfer a matter.
Court Disposition
application dismissed with costs to the state
Orders
- The application to transfer CMCC 12915/06 from Nairobi Milimani Commercial Court to Thika Chief Magistrate's Court is dismissed.
- Costs awarded to the state.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 403 of 2007
1. Land and Environmental Law Division
2. Cvil Practice and Procedure:-
i) Transfer of suit from Nairobi CMCC court to Thika CMCC
ii) That the defendants reside where the premises is.
3. Application dated 27. 6.07 to transfer CMCC 12915/06
4. Opposition by state. The CM’s court lacks jurisdiction to hear the prayers against the 1st defendant.
5. Held: The issue of the courts jurisdiction against the 1st defendant be dealt with in the Chief Magistrate court Nairobi.
6. Case law
7. Advocate:
F.N. Kimani of F.N. Kimani & Co. Advocates for the plaintiff/applicant - present
P.K. Njoroge of P.K. Njoroge & Co. Advocates for the 2nd and 3rd defendant/respondent – present
L.N. Muiruri of the Attorney General for 1st defendant/respondent - present
JOSEPH KABENI MATHERI ……………….......…….………. PLAINTIFF
VERSUS
ATTORNEY GENERAL ……………......………......……1ST DEFENDANT
JOHN GITHINJI MWANGI ……..……………….....…….2ND DEFENDANT
JEREMIAH GITHINJI MAHUGU …….………….……...3RD DEFENDANT
RULING
APPLICATION OF 27. 6.2007
1. The applicant herein seeks this courts orders to transfer a suit filed at the Milimani Commercial Courts, Chief Magistrate Court Civil suit 12915/06 from that court to the Chief Magistrate Court case in Thika.
2. The reasons of transfer under section18 of the Civil Procedure Act is that the defendants reside near Ruiru. Their court is in Thika. Accordingly the a Kenya Gazette 19 January 2007 it is a requirement that suits be filed where the defendants reside, in this case Thika.
3. The suit was filed at the Nairobi Milimani Commercial Court. That the state questioned the Jurisdiction of the court to make orders against the Attorney General by the Chief Magistrate a transfer was required.
4. The state objection to the transfer on grounds that the Chief Magistrate having no jurisdiction to make orders against the Attorney General the said suit cannot therefore be transferred.
II: Finding
5. Under section 15 of the Civil procedure Act suits must be instituted where the defendant resides or where the cause of action arose. In this case the Attorney General is not questioning the suit but is questioning the Jurisdiction by the court to make orders before it against the 1st defendant.
Namely the relief sought is under the Registration of Title Act Cap.281. Under section 2 of the act the word “court” refers only to the High Court. This therefore means the Chief Magistrates court has no Jurisdiction to deal with the prayers raised in the suit.
6. Once a court has no jurisdiction to deal with a matter then the said suit cannot be transferred due to lack of jurisdiction. I hereby would uphold the said argument by the state by relying on the case law of Kagenyi v Musiramo (1968) EA 43.
7. This application herein is hereby dismissed with costs to the state.
Dated this 15th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
F.N. Kimani of F.N. Kimani & Co. Advocates for the plaintiff/applicant - present
P.K. Njoroge of P.K. Njoroge & Co. Advocates for the 2nd and 3rd defendant/respondent – present
L.N. Muiruri of the Attorney General for 1st defendant/respondent - present