[2021] KEELC 951 (KLR)
The court found that the suit was filed in a court without territorial jurisdiction, namely Githongo, whereas the subject land is situated within the jurisdiction of Nanyuki Law Courts. Citing binding precedent, the court held that it would be illegal to transfer a suit filed in a court lacking jurisdiction to a...
Source-derived case information.
- Citation
- [2021] KEELC 951 (KLR)
- Parties
- Plaintiff: Julius Mwiti M’Ringera; Defendant: Festus Muriungi Naituri (Sued as the legal representative of the estate of M’Nairri M’Rutere)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E035 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Legal Topics
- Transfer of Suit, Territorial Jurisdiction, Incompetent Suit, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Mwiti M’Ringera
Plaintiff
Festus Muriungi Naituri (Sued as the legal representative of the estate of M’Nairri M’Rutere)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the court has jurisdiction to transfer a suit filed in a court lacking territorial jurisdiction.
- 2 Whether a suit filed in a court without jurisdiction can be transferred to a competent court under Section 18 of the Civil Procedure Act.
- 3 Whether the applicant is entitled to the transfer and disposal of the suit to Nanyuki Law Courts.
Ratio Decidendi
The court found that the suit was filed in a court without territorial jurisdiction, namely Githongo, whereas the subject land is situated within the jurisdiction of Nanyuki Law Courts. Citing binding precedent, the court held that it would be illegal to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction, as such a suit is a nullity and not capable of being transferred. The only remedy available to the applicant is to withdraw the suit and file a fresh one in the competent court. Accordingly, the application for transfer was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for transfer is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC MISC. APPLICATION CASE NO. E035 OF 2021
JULIUS MWITI M’RINGERA................................................................................................................................................PLAINTIFF
VERSUS
FESTUS MURIUNGI NAITURI (Sued as the legal representative of the estate of M’NAIRRI M’RUTERE............DEFENDANT
RULING
1. Through an application dated 17. 8.2021 brought under Section 1A, 1B and 3 of the Civil Procedure Rules and all other enabling provisions of the laws Julius Mwiti M’Ringera seeks for the transfer and disposal of Githongo ELC No. E006/2021 to Nanyuki Law Courts.
2. The application is supported by affidavits sworn on 17. 8.2021 and 22. 9.2021respectively.
3. The grounds are that suit relates to Land L.R Laikipia/Daiga/Block 4/924 Nyariginu. The trial court on 11. 2.2021 noted the suit ought to have been filed within Nanyuki Law Courts in which the subject land is situated and that leave to file the suit out of time had also been granted at Nanyuki Law Courts.
4. It is not clear from the supporting affidavit why the applicant filed the suit in Githongo, yet the suit land is situated in Nanyuki.
5. There is no doubt the suit was filed in the wrong court contrary to Sections 12, 15 and 16 of the Civil Procedure Act. Under Section 18 of the Civil Procedure Act, the High Court has powers to transfer a suit from one court to the other.
6. In Equity Bank –vs- Bruce Mutie Mutuku T/A Diani Tours & Travel [2016] eKLR,the Court of Appeal held it would be illegal for the High Court under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred.
7. In Mwangi Wamigwi –s- Simon Mbiriri Wanjiku & Another [2015] eKLRit was held where a suit is instituted in a tribunal with no jurisdiction, such suit cannot be transferred under Section 18 of the Civil Procedure Act to a tribunal where it ought to have been properly instituted, since such a suit is a nullity in law.
8. In the instant case the court with territorial jurisdiction was Nanyuki Law Courts. The only option and which the applicant has is to withdraw the suit so as to pave way for the filing of a fresh suit in a court competent to try it.
9. In the circumstances the application herein lacks merit and is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17TH DAY OF NOVEMBER, 2021
In presence of:
NO APPEARANCE FOR THE PARTIES
COURT ASSISTANT - KANANU
HON. C.K. NZILI
ELC JUDGE