[2020] KEELC 1479 (KLR)
The court found that it has supervisory powers over subordinate courts and the authority to transfer cases under Section 18 of the Civil Procedure Act. The application for transfer of the suit from the subordinate court to the Environment and Land Court was pending determination. Granting a stay of proceedings in...
Source-derived case information.
- Citation
- [2020] KEELC 1479 (KLR)
- Parties
- Applicant: Simon Katua Mutia; Applicant: Abdulla Sahrrif Omar Mohamed; Respondent: Penninah Kimeru Mutua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 40 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Stay of Proceedings Pending Transfer Application
- Outcome
- application allowed
- Judges
- CK Yano
- Legal Topics
- Stay of Proceedings, Transfer of Suit, Supervisory Jurisdiction, Pecuniary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Katua Mutia
Applicant
Abdulla Sahrrif Omar Mohamed
Applicant
Penninah Kimeru Mutua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Stay of Proceedings Pending Transfer Application
Legal Issues
- 1 Whether the court should grant a stay of proceedings in Voi ELC Case No. 17 of 2018 pending determination of the transfer application.
- 2 Whether the interests of justice and the overriding objective warrant the stay sought by the applicants.
Ratio Decidendi
The court found that it has supervisory powers over subordinate courts and the authority to transfer cases under Section 18 of the Civil Procedure Act. The application for transfer of the suit from the subordinate court to the Environment and Land Court was pending determination. Granting a stay of proceedings in the subordinate court was necessary to prevent the transfer application from being rendered nugatory, as the subordinate court proceedings could otherwise conclude before the transfer application was heard. The court held that it was just and fair to grant the stay order sought by the applicants, and allowed the application accordingly.
Court Disposition
application allowed
Orders
- Stay of proceedings in Voi ELC Case No. 17 of 2018 granted pending hearing and determination of the transfer application in Mombasa ELC Misc. Application No. 40 of 2019.
- Costs of the application to abide the outcome of the main application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
MISC. APPLICATION NO. 40 OF 2019
1. SIMON KATUA MUTIA
2. ABDULLA SAHRRIF OMAR MOHAMED....APPLICANTS
VERSUS
PENNINAH KIMERU MUTUA ........................RESPONDENT
RULING
1. The application for consideration is the notice of motion dated 20th November 2019 and stated to be brought under Section 6, 1A, 1B and 3A of the Civil Procedure Act and order 51 Rule 1 of the Civil Procedure Rules. In the application, the applicants are seeking for orders that there be a stay of proceedings in Voi ELC Case 17 of 2018 pending the hearing and determination of Mombasa ELC Misc. Application No. 40 of 2019.
2. The application is supported by the affidavit of Samuel M. Kasyoka, advocate sworn on 20th November, 20i9. It is the applicants’ case that it filed Voi ELC No. 17 of 2018 at a time when the magistrate’s court had jurisdiction. That subsequently, the magistrate who had pecuniary jurisdiction was transferred. This prompted the respondents to raise a preliminary objection seeking to strike out the suit for want of jurisdiction. The applicant then filed Misc. Application No. 40 of 2019 before this court seeking the transfer of Voi ELC NO. 17 of 2018 to this court. The said application is pending hearing. It is for this reason that the applicant brought the instant application. The applicant contends that it is in the interests of justice and in advancing the overriding objective that the orders sought herein be granted.
3. In opposing the application, the respondent filed a replying affidavit sworn on 18th December 2019. It is deposed that the applicants have decided to engage in forum shopping and are guilty of material non-disclosure as to what transpired in the subordinate court. It is the respondent’s contention that the overriding objective cannot cure a void suit and the interests of justice do not warrant the grant of the orders sought.
4. I have considered the application and the affidavits in support and against as well as the rival submission. The application seeks to stay the proceedings in Voi SPMC ELC Case No. 17 of 2018 pending the hearing and determination of the application for transfer which is pending herein. There is no denial that this court has supervisory powers over the subordinate courts. Section 18 of the Civil Procedure Act gives this court power to withdraw and transfer a case instituted in a subordinate court. The application for transfer therefore will be heard and decided on merit. In the meantime, it is my view that in order not to render the said application for transfer nugatory, it is only just and fair that a stay order is granted as sought by the applicants. Should the stay order not be granted, the matter in the subordinate court may proceed to conclusion and the miscellaneous application pending before this court may be overtaken by events.
5. The upshot is that I find merit in the Notice of Motion dated 20th November 2019. The same is allowed as prayed. Costs of the application to abide the outcome of the main application.
6. Orders accordingly
DATED, SIGNED and DELIVERED at MOMBASA electronically by email due to COVID-19 Pandemic this 29th day of July 2020
___________________________
C.K. YANO
JUDGE
IN THE PRESENCE OF:
Yumna Court Assistant
C.K. YANO
JUDGE