[2022] KEHC 620 (KLR)
The High Court dismissed the application for review and transfer on the basis that the applicant failed to demonstrate any error on the face of the record, discovery of new material, or other sufficient reason as required for review under Order 45 of the Civil Procedure Rules. Furthermore, the court held that it...
Source-derived case information.
- Citation
- [2022] KEHC 620 (KLR)
- Parties
- Appellant: Peter Mukhunya Maloba; Respondent: Dennis Kusinyo Shiundu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Transfer After Dismissal for Lack of Jurisdiction
- Outcome
- application dismissed with costs to the respondent
- Judges
- WM Musyoka
- Legal Topics
- Review of Judgment, Transfer of Suit, Jurisdiction, Environment and Land Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mukhunya Maloba
Appellant
Dennis Kusinyo Shiundu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Transfer After Dismissal for Lack of Jurisdiction
Legal Issues
- 1 Whether the High Court can review its judgment dismissing the appeal for lack of jurisdiction.
- 2 Whether the High Court can transfer an incompetent appeal to the Environment and Land Court after finding it lacks jurisdiction.
Ratio Decidendi
The High Court dismissed the application for review and transfer on the basis that the applicant failed to demonstrate any error on the face of the record, discovery of new material, or other sufficient reason as required for review under Order 45 of the Civil Procedure Rules. Furthermore, the court held that it lacked jurisdiction to transfer the appeal to the Environment and Land Court, as established by binding Court of Appeal authority, which states that a court without jurisdiction cannot transfer an incompetent suit or appeal to another court. The application was found to be without merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Motion dated 6th August 2021 is dismissed.
- The respondent is awarded the costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
Maloba v Shiundu (Civil Appeal 62 of 2019) [2022] KEHC 620 (KLR) (10 June 2022) (Ruling)
Neutral citation: [2022] KEHC 620 (KLR)
Republic of Kenya
In the High Court at Kakamega
Civil Appeal 62 of 2019
WM Musyoka, J
June 10, 2022
Between
Peter Mukhunya Maloba
Appellant
and
Dennis Kusinyo Shiundu
Respondent
(From judgment and decree of Hon. CC Kipkorir, Senior Resident Magistrate, in Mumias PMCCC No. 164 of 2017, of 8th May 2019)
Ruling
1. On 26th June 2020, I delivered a judgment in which I dismissed the appeal herein, on grounds that I had no jurisdiction to hear and determine it, as it fell within the jurisdiction of the Environment and Land Court.
2. The appellant has come back to court with an application asking me to review the decree of 26th June 2020, and seeking for an order that I transfer the appeal to the Environment and Land Court. The parties have gone on to file written submissions on the appeal. I wonder how parties can file written submissions on a suit that has been struck out, and, therefore, ceased to exist. Such act is an exercise in total futility
3. Review of a judgment or decree or order is founded on error on the face of the record or discovery of new material or other sufficient reason. The affidavit drawn in support of the application has not sought to demonstrate error on the face of the record or discovery of new material or other sufficient reason. I, therefore, do not see any basis for review of the judgment and decree of 26th June 2020.
4. The Court of Appeal has held, in a number of cases, that where a suit is incompetent, on account of jurisdiction, the court without jurisdiction, has no jurisdiction to transfer it to the court with jurisdiction. The argument is that the appeal is incompetent, and the court ought not to transfer an incompetent suit to the other court, for that court ought not to entertain a suit that was originally incompetent. Secondly, if the court does not have jurisdiction to entertain the suit, there should be no jurisdiction to transfer it. See Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR (Makhandia, Ouko & M’Inoti JJA) and Phoenix ofEAAssurance Company Limited v SM Thiga t/a Newspaper Service [2019] eKLR (Karanja, Gatembu & Sichale JJA).
5. There is absolutely no merit in the Motion, dated 6th August 2021. The same is for dismissal, and it is hereby dismissed. The respondent filed a preliminary objection to it, I shall, therefore, award him the costs of the application.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMs. Luchivya, instructed by Marisio Luchivya & Company, Advocates for the appellant.Mr. Mukoya, instructed by RV Mukoya & Company, Advocates for the respondent.