[2014] KEHC 745 (KLR)
The court found that the applicant's defence raised substantial legal issues, including the validity of the contract for sale of land, the period of limitation given the alleged purchase date of 1964, and the absence of mandatory Land Control Board consent for a controlled transaction. These matters are significant...
Source-derived case information.
- Citation
- [2014] KEHC 745 (KLR)
- Parties
- Applicant: Njeru Kiande; Respondent: Naleah Njura Ndwiga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 22 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit From Magistrate's Court to High Court
- Outcome
- application granted
- Legal Topics
- Transfer of Suits, Jurisdiction of Courts, Limitation Periods, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Kiande
Applicant
Naleah Njura Ndwiga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit From Magistrate's Court to High Court
Legal Issues
- 1 Whether the application meets the threshold for transfer under Section 18 of the Civil Procedure Act.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant's defence raised substantial legal issues, including the validity of the contract for sale of land, the period of limitation given the alleged purchase date of 1964, and the absence of mandatory Land Control Board consent for a controlled transaction. These matters are significant and require determination by the High Court. The application satisfied the requirements of Section 18 of the Civil Procedure Act, which empowers the High Court to transfer or withdraw suits from subordinate courts where appropriate. The respondent, having been served but failing to attend or oppose, did not challenge the application. Accordingly, the court exercised its...
Court Disposition
application granted
Orders
- The case is transferred from the magisterial court to the High Court in terms of prayer number 2 of the notice of motion.
- The costs of this application shall be costs in cause.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
E.L.C. MISC NUMBER 22 OF 2014
NJERU KIANDE...........................................................APPLICANT
VERSUS
NALEAH NJURA NDWIGA........................................RESPONDENT
RULING
INTRODUCTION
By their notice of motion dated 17th October 2014, counsel for the applicant have sought an order of transfer to effect the withdrawal of Embu Chief Magistrate's Court civil case number 204 of 2012, which is pending before that court and the same be tried in the High Court. They are seeking the transfer of that suit to the High Court for trial and disposal. They have annexed a supporting affidavit to the notice of motion.
The respondent was served with the hearing notice in respect of this motion but he did not attend the hearing. The hearing therefore had to proceed in his absence.
The Applicant's Factual Basis:
The application for transfer is based on Section 18(b)(ii) of the Civil Procedure Act Chapter 21, of Sections 2, 3, 4, 5 and 13 of the Environment and Land Court Act of 2011. According to the applicant, the suit that is pending in the magisterial court raises issues of jurisdiction. He has stated in his defence that the suit raises issues of law. For example, he has stated in his written statement of defence that the suit is time barred under the Limitation of Actions Act, Cap 22 Laws of Kenya. Furthermore, he says that there was no valid contract for the sale of land. He has finally stated that the mandatory consent of the land control board was not obtained as required by law, because this was a controlled transaction.
The Applicable Law:
The law that governs the transfer of suits from the lower courts to the High Court is set out in Section 18 of the Civil Procedure Act. The provisions of that section state as follows:
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage -
a. transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
b. withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter -
i. try or dispose of the same; or
ii. transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
iii. re-transfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
Issues for Determination
It is my considered view that the application raises the following issues for determination:
1. Whether the application has met the threshold set out in Section 18, Civil Procedure Act.
2. Who should bear the costs of this application.
Evaluation of the Evidence, the Law and Submissions
A perusal of the written statement of defence clearly indicates that there are weighty issues of law raised by the applicant. These issues relate to the validity of the contract for the sale of land. They also relate to the issue of the period of limitation, limitation because the suit land is alleged to have been bought in 1964.
Additionally, they involve the issue of the mandatory consent of the Land Control Board, because the suit land is a controlled transaction. In the circumstances, this is a fit and proper case for transfer to the High Court for determination and disposal.
Verdict and Disposal Order:
In view of the foregoing:
1. I hereby grant the order to transfer the case from the magisterial court to the High Court in terms of prayer number 2 of the notice of motion.
2. The costs of this application shall be costs in cause.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this….15th.......day of…..DECEMBER, ....2014
In the presence of
Mr M. Njage for the Applicant and in the absence of the Respondent
Court clerk Mr Muriithi
Right of Appeal under Order 43 explained to the parties.
J.M. BWONWONGA
JUDGE