[2023] KEHC 26061 (KLR)

Juja Coffee Exporters Limited & 3 others v Bank of Africa Limited & another (Commercial Suit 57 of 2016) [2023] KEHC 26061 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26061 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Suit 57 of 2016

DKN Magare, J

November 21, 2023

Between

Juja Coffee Exporters Limited

1st Plaintiff

Tss Transporters Limited

2nd Plaintiff

Tss Investemnt Limited

3rd Plaintiff

Tahir Sheikh Said Ahamed

4th Plaintiff

and

Bank Of Africa Limited

1st Defendant

Kaab Investment Limited

2nd Defendant

Ruling

1. This matter has had a history no litigant could be proud of. I first handled the matter, when it came up for hearing early March. The Plaintiff made an unfortunate application, which I dismissed. The matter was coming for hearing on 10/3/2023 for hearing when I proposed to give a hearing date in May.

2. However, the Plaintiff insisted that they needed adequate time. I then issued a notice for 8/6/2023 giving adequate time for parties to proceed within 90 days. I also have a rider that an application for amendment be filed within a specific period. I proceed to give a date for the same.

3. Nothing happened and therefore fixed the matter for 8/6/2023. The said date coincided with the official function that the Court was proceeding with, that is the High Court Colloquium. I directed that matters for 8/6/2023 be heard on the following available date in the next week. The matter still had life upto 16/6/2023. The documents were to be filed before 30/4/2023. This was given because there had been a myriad applications and the suit was not moving forward.

4. Long after all these time had lapsed, the applicants filed an application dated 3/7/2023, seeking the following orders: -i.The time granted for the making of the present application be extended and the present application be deemed as having been filed within time.ii.The suit be transferred to the ELC siting at Mombasa for hearing and final determination in light of the prosed amendments.iii.The Plaintiffs be granted leave to amend the Plaint dated 3rd June 2016 in accordance with the draft Amended Plaint filed herewith, and upon such leave, the Amended Plaint be filed within fourteen (14) days.iv.The time for making an application for substitution be extended in so far as it relates to the 4th Plaintiff and this application be deemed as having been made within such extended time.v.The suit by the 4th Plaintiff be revived and the Executors of the estates of the 4th Plaintiff be added as parties to the suit as the plaintiff.vi.The cost of this application be in the cause.

5. The same was replied to through an affidavit of Felix Muhati, an employee of the 1st Defendant, who is said to be a Senior Recoveries officer. He set down the chronology of events up to and including 16/6/2023 when the order christalised where none turned up on 8/6/2023, I fixed the mater for hearing on 32/7/2023. The application was filed on the said date to scuttle the hearing.

6. I have perused the application. The same seeks to extend time to file and application to amend without reviving the suit that stood dismissed on 17/6/2023.

7. Even if I have to look at the application to transfer the suit to ELC, the orders sought are purely land related. The court does not have jurisdiction to transfer a suit that is filed in a wrong forum. In Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR where the Court held as follows:“It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot Purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognised by law. It is now settled law that where a Court finds that it has no jurisdiction, it must immediately down its tools and proceed no further.”

8. This is not even the main issue. The main issue is that the suit was deemed dismissed. No order has been sought to extend that time. The court cannot transfer a suit that is deemed dismissed however good the grounds a party may have, they need to get the elephant out of the room first before asking for transfer.

9. Further, where there are predominant issues, then the Court with predominant issues will hear the entire suit. In this matter, the sale already occurred. The suit is seeking to challenge the sale and title held by the buyer. They are matters covered under Section 13(2) of the Environment and Land Court Act, which provide as doth:(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.

10. In Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, the High Court stated as doth: -“105. Subsequent to the above decisions, our Courts have identified the correct approach to determine the appropriate superior Court to hear such hybrid cases. The Courts have resolved the issue by inquiring what the most substantial question or issue presented in the controversy is. For example in Suzanne Butler & 4 Others v Redhill Investments & Another[52] the Court stated the test in the following words:"When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue."

11. In a case where there is admittedly no jurisdiction this Court has no power to transfer the same. The suit is dead on arrival. In the circumstances the application dated 3//7/2023 lack merit and is dismissed in limine. This is because the suit is already dismissed by 17/6/2023. Comply with the requisites for filing the application by the appointed time. There are no reasons given for not making the application within time and for not reviving the suit.

Determination 12. In the circumstances I make the following orders: -a.The Applications dated 3/7/2023 is dismissed with costs of 20,000/=b.The Plaintiff’s suit stood dismissed with costs on 17/6/23. c.The court lacks jurisdiction to transfer a suit where it has no jurisdiction.d.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Kongere for the Plaintiff/ ApplicantMr. Wairimu for 1st DefendantNo appearance for 2nd DefendantCourt Assistant - Brian