[2017] KEELC 592 (KLR)
The court held that the mere pendency of litigation on the issue of jurisdiction before the Court of Appeal does not justify the transfer of the suit from the Chief Magistrate's Court to the Environment and Land Court. The court found that unless it is shown that the Chief Magistrate's Court lacks jurisdiction, or...
Source-derived case information.
- Citation
- [2017] KEELC 592 (KLR)
- Parties
- Applicant: Samuel Mwaura; Respondent: Charles Masinde
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Jurisdiction of Magistrates Courts, Transfer of Suits, Pending Appeals, Court Powers on Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwaura
Applicant
Charles Masinde
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit
Legal Issues
- 1 Whether the Environment and Land Court should transfer Kitale CMCC No.2 of 2015 from the Chief Magistrate's Court to itself for determination.
- 2 Whether the pendency of an appeal on jurisdiction justifies transfer of the suit.
- 3 Whether the Chief Magistrate's Court currently has jurisdiction to hear the matter.
Ratio Decidendi
The court held that the mere pendency of litigation on the issue of jurisdiction before the Court of Appeal does not justify the transfer of the suit from the Chief Magistrate's Court to the Environment and Land Court. The court found that unless it is shown that the Chief Magistrate's Court lacks jurisdiction, or that the suit was initially filed in a court without jurisdiction, there is no basis for transfer. The court also noted that the repeated transfers of the suit between courts have contributed to delays in its conclusion. Consequently, the application for transfer was found to lack merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 24/2/2017 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC MISC. APPLICATION NO.2 OF 2017
SAMUEL MWAURA…………………..………………. PLAINTIFF
VERSUS
CHARLES MASINDE……………….…………….. DEFENDANT
R U L I N G
1. The applicant brought an application dated 24/2/2017 seeking the following orders:-
(a) That this Honourable Court do transfer Kitale CMCC No.2 of 2015 from the Chief Magistrates Court, at Kitale to Environment and Land Court at Kitale for disposal and final determination.
(b) That the costs of this application be in the main cause.
2. The application is made on the grounds that the issue of jurisdiction of the Chief Magistrates Court to try land matters is pending before the Court of Appeal, and that this court now has jurisdiction to determine this matter.
3. In summary, what the applicant states in application and supporting affidavit is that the suit has been transferred three times, first, from the High Court to the Chief Magistrate’s Court, secondly from the Chief Magistrate’s Court back to the High Court and thirdly, from the High Court back to the Chief Magistrate’s Court. The first transfer occurred in 2013. The second and third transfers were by way of a consent and they occurred in the year 2014.
4. It is claimed that the defendant will not be prejudiced in any way if the orders sought are granted. If effected by way of an order of this court, the transfer sought would be the fourth transfer. There is no allegation made to the effect that the Chief Magistrate’s Court has no jurisdiction to try this matter. The only allegation I find is that the issue of the jurisdiction of the Chief Magistrate’s Court to try this matter is still pending before the Court of Appeal. Though it is true that this court has jurisdiction to transfer a suit from another court to itself that order cannot be made unless the suitland been in the first place been brought to a court which has jurisdiction to try it.
5. If the court before which this suit had been initially brought had jurisdiction, it is not necessary to transfer this matter to this court. If it had jurisdiction and same litigation directly affecting its jurisdiction was commenced and it has not been brought to a final conclusion, then that court is still deemed to have jurisdiction. The mere pendency of that litigation before another court should not automatically prompt a transfer application of this nature. I also conclude by stating that it may be the constant movement of that suit from one court to the other that may have delayed its conclusion.
6. Consequently, I find the application dated 27/9/2017 to have no merit and I dismiss it with no orders as to costs.
Dated, signed and delivered at Kitale on this 9thday of October, 2017.
MWANGI NJOROGE
JUDGE
9/10/2017
Before – Mwangi Njoroge Judge
Court Assistant – Isabellah/Picoty
Mr. Waweru holding brief for Gachathi for Plaintiff
N/A for the Defendant
COURT
Ruling read in open court in the presence of counsel for the Plaintiff.
MWANGI NJOROGE
JUDGE
9/10/2017