[2023] KEELC 21835 (KLR)
The court held that the motion for transfer was premature because the Lower Court must first determine whether it has jurisdiction, particularly since the dispute may be a boundary matter reserved for the District Land Registrar. Additionally, the applicants do not require a court order to withdraw their suit from...
Source-derived case information.
- Citation
- [2023] KEELC 21835 (KLR)
- Parties
- Applicant: Pascal Koroso Mwita; Applicant: Caroline Nduku Mbindiyo; Respondent: Eunice Julie Wambui; Respondent: Titus Birithia Kuuluh
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E001 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Transfer of Suit
- Outcome
- motion dismissed with costs
- Judges
- MN Gicheru
- Legal Topics
- Transfer of Suit, Pecuniary Jurisdiction, Magistrates Court Jurisdiction, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pascal Koroso Mwita
Applicant
Caroline Nduku Mbindiyo
Applicant
Eunice Julie Wambui
Respondent
Titus Birithia Kuuluh
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Transfer of Suit
Legal Issues
- 1 Whether the Environment and Land Court should transfer ELC No. E008/2022 from Loitoktok Magistrates Court to itself.
- 2 Whether the Magistrates Court at Loitoktok has pecuniary and subject matter jurisdiction over the dispute.
- 3 Whether the applicants require a court order to withdraw their suit from the Lower Court.
Ratio Decidendi
The court held that the motion for transfer was premature because the Lower Court must first determine whether it has jurisdiction, particularly since the dispute may be a boundary matter reserved for the District Land Registrar. Additionally, the applicants do not require a court order to withdraw their suit from the Lower Court; they may do so voluntarily under Order 25 of the Civil Procedure Rules. Therefore, the application lacked merit and was dismissed with costs.
Court Disposition
motion dismissed with costs
Orders
- The notice of motion dated 11/1/2023 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
Mwita & another v Wambui & another (Environment and Land Miscellaneous Application E001 of 2023) [2023] KEELC 21835 (KLR) (29 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21835 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Miscellaneous Application E001 of 2023
MN Gicheru, J
November 29, 2023
Between
Pascal Koroso Mwita
1st Applicant
Caroline Nduku Mbindiyo
2nd Applicant
and
Eunice Julie Wambui
1st Respondent
Titus Birithia Kuuluh
2nd Respondent
Ruling
1. This ruling is on the notice of motion dated 11/1/2023. The motion is by the applicants and seeks an order of transfer of ELC No. E008/2022 from Loitoktok Magistrates Court to this court.The motion is based on seven grounds. It is also supported by an affidavit sworn by the applicants dated 11/1/2023. It is brought under sections 1A, 1B, 3A, 18(1) (b), order 51 rules 1 and 10 of the Civil Procedure Act and Rules and articles 50(1), 159(d) and (e) and 165 (6) and (7) of the Constitution and all other enabling provisions of the law.
2. The gist of all the above material is that the value of the suit land exceeds the pecuniary jurisdiction of the Magistrates court at Loitoktok.
3. The motion is opposed by the respondents on the ground that the suit filed before the Loitoktok Court is outside the jurisdiction of the court as it should be determined by the District Land Registrar. To this end, the respondents have filed a preliminary objection challenging the jurisdiction of the court to handle a boundary dispute and the Lower Court is yet to determine that application.
4. I have considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit, the annexures, the submissions and the law cited therein. I find that the motion has no merit for two reasons.
5. Firstly, it is necessary that the Lower Court first determines the issue of jurisdiction because should the finding be that the dispute relates to a boundary, this court would have no jurisdiction either.
6. Secondly, the applicants who are the plaintiffs in the Lower Court Case do not need any court order to withdraw the suit in the Lower Court. They can do it under Order 25 of the Civil Procedure Rules on their own volition.
7. For these two reasons, I dismiss the motion dated 11/1/2023 with costs.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 29THDAY OF NOVEMBER 2023. M.N. GICHERUJUDGE