Esther Wangui Wanjohi v Kellen Muthoni Kibara [2021] KEELC 3769 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

MISC APPLICATION  NO. 62 OF 2019

ESTHER WANGUI WANJOHI.................................PLAINTIFF/APPLICANT

VERSUS

KELLEN MUTHONI  KIBARA......................DEFENDANT / RESPONDENT

RULING

The matter for determination is the Notice of Motion Application, dated  19th November 2019, by the  Plaintiff/ Applicant seeking for orders that;

1. Suit No. ELC  Case No. 9 of 2019, being Esther  Wangui  Wanjohi …Vs… Kellen Muthoni  Kibara, be and is hereby transferred from the Senior Principal Magistrate’s Court, Ruiru to  Environment & Land Court  at Thika  for final determination.

2. Costs be in the cause.

The Application is premised on the grounds that on 4th April 2019, the Plaintiff/ Applicant filed  Case No. 61 at the Environment & Land Court in Thika and the  Court on its own motion transferred the matter from Thika Environment and Land Court to the Senior Principal Magistrates Court at Ruiru as ELC Case No. 9 of  2019, for hearing and determination. That the matter came up for hearing where the Defendant/Respondent produced a valuation report putting the value of the suit property at more than  Kshs. 20,000,000/=.

Further that the Plaintiff/ Applicant carried out a Revaluation  of the suit property on 13th November 2019,  to which it was determined that each individual plot  of the 12 plots in the suit property  has a market value of Kshs.2,000,000/= which total value  exceeds the pecuniary jurisdiction  of Senior Principal  Magistrate’s Court at Ruiru and thus it is in the interest of Justice that the suit is transferred  to the Environment & Land Court,  Thika for determination.

In her Supporting Affidavit, Esther Wangui Wanjohi averred that on8th November 2019, she carried out a search of  Ruiru/Kiu/ Block  11001-11012,formerlyRuiru Kiu Block  2/2519,  and upon receiving the searches of the individual plots, she found out that the Defendant/Respondent transferred plots no. 11001, 11002, 11005, 11008, 11009 and 11010 to individuals on 6th June 2019,  two months after she instituted a suit against her.   She averred that it is in the interest of Justice that the suit be transferred to this Court.

The  Application is opposed and the  Defendant/ Respondent swore a Replying Affidavit filed in Court on 9th December 2019,and averred that the  Plaintiff/ Applicant was served with the list of documents and Photostat  copies of the same through her Advocates on 25th June 2019,  and therefore had ample time  to  verify whether  the Valuation Report of the land was authentic or not.  That the Plaintiff/ Applicant filed the suit on 4th April 2019, and was aware of the subdivisions at the time of filing the suit.  Further that at the time of sale of plots No.  Ruiru/Kiu Block  2/11001, 11002, 11005, 11008, 11009 and 11010,  there was no suit pending.  That she has been advised by her Advocate’s that  if a matter is filed  in a Court which has no jurisdiction, then there  is no suit  to be transferred. That the Plaintiff/ Applicant  had closed her case and the  Defendant’s/ Respondent’s  last witness in ELC No. 9 of  2019 at Ruiru SPM Court was the Valuer  who was being cross examined by the Plaintiff’s/ Applicant’s  Advocate when the Court found that it had no jurisdiction upon the value . That the issue of jurisdiction should have been ascertained by the  Plaintiff/ Applicant  before the hearing of any witnesses  by the Court . The Court as urged to dismiss the Application.

The  Plaintiff/ Applicant  Esther  Wangui  Wanjohi  swore a Supplementary Affidavit  on 2nd March 2020and averred that  the  Defendant/ Respondent is in possession of the  suit land and  was in the best position  to raise the issue of jurisdiction  before the matter went for hearing. She averred that she has been advised by her Advocates on record, advise which se believes to  be true that the Defendant/ Respondent  does not stand  to suffer any harm  should the Plaintiff’s/ Applicant  Application be allowed. That she was aware that the value of the suit land was Kshs. 1,500,000/=,  the amount which her late father illegally sold the  suit land to the Defendant  at in 2013and had she been aware of the appreciation, she would have promptly  informed the Court when the matter was transferred. That dismissing the suit instead of transferring it  will cause irreparable harm and  that it is in the interest of Justice and expeditious  disposal of  cases  that the suit is transferred.

The Application was canvased by way of written submissions which the Court has carefully read and considered.  The Court has also considered the Application and the Affidavits in support of and in opposition of the same and finds that the issue for determination is whether  the Application is  merited.

The Applicant has sought for  the transfer of the  suit from  subordinate Court based on the fact that  the  Lower Court has no jurisdiction to hear and determine the matter based on the value of the land.   Though the Defendant/ Respondent has argued that the objection to the jurisdiction of the lower Court to hear and determine the matter came too late in the day, it is not in doubt that jurisdiction is everything and without it a Court has no option but to down its tools.  Further it is not in doubt that the issue of jurisdiction can be   brought at any time even at the appeal stage.

The power bestowed upon the High Court to transfer suits of a Civil nature is provided for in Section 18of theCivil Procedure Act that stipulate thus:-

“(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) retransfer 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.”

In the  case of Hangzhou Agrochemicals Industries ltd …Vs… Panda Flowers Ltd (2012) eKLR,the court addressed conditions to be considered in determining whether or not to grant an order of transferring a suit, thus:

“...In my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case”.

The Plaintiff/ Applicant has sought for the transfer of the suit  on the basis that the lower Court does not have jurisdiction to hear and determine the matter.  It is not in doubt that the powers to order transfer by the High Court which has an equal status to the Environment and Land Court are discretionary.  However, a matter can only be transferred if the Court from which the Applicant is seeking to have the matter transferred from had jurisdiction over the said matter and the Applicant has satisfied the Court that the transfer is necessary. See the case of Kithita Ngeana …Vs… Mwaniki Kisume [2018] eKLR where the Court stated;-

“Circumstances that would move a court to grant the order sought were considered in the David Kabungu Case (Supra) where Okello Jstated that;…….

“What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction… it is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused… Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer would be refused…”

However, in this instant case the Court acknowledges the special circumstances that occurred and caused the suit to be filed in Ruiru SPM’s Court.   It is not in doubt that the suit that the Applicant seeks to transfer was initially filed before the Environment and Land  Court Thika which was vested with the  requisite jurisdiction. The Court on its own motion transferred the suit to Ruiru SPM’s Court based on the  documents that were  filed in Court that suggested that the Senior Principal Magistrate’s Court in Ruiru   was clothed with the requisite jurisdiction as the value of the suit property is higher than the said Court’s pecuniary jurisdiction.  However it turns out that the said Court did not have jurisdiction. Can this Court then transfer the matter back to this Court?

Jurisdiction is everything and without it a Court has no option but to down its tools. It is also not in doubt that jurisdiction is conferred by the law and no party can confer jurisdiction on any Court even parties can not consent to a Court having jurisdiction.  The law requires that a Court transfers a matter if the Court in which the matter was filed in had jurisdiction, it is not in doubt that the matter was filed before this Court, and therefore, it follows that the matter was filed in a Court  that was clothed with the requisite  jurisdiction. When the Court inadvertently based on insufficient documents transferred the matter, it vested the  SPM Court in Ruiru  with jurisdiction that it did not have.  Considering the circumstances of this case, there is no doubt that the transfer to the Ruiru SPM Court was null and void ab initio as this Court could not confer the said Court with jurisdiction neither could the parties.

Having held that the  matter ought not to have been transferred and the fact that the matter was filed in the Court that had jurisdiction, the Court finds and holds that the instant Application is merited  and the  file ought to be transferred back to this Court for  hearing and determination. It is in the best interest of Justice and expeditious disposal of the suit that the said matter is transferred to a Court with requisite pecuniary jurisidiction.

The Upshot of the foregoing is that the Notice of Motion Application dated 19th November 2019, is foundmerited and the same is allowed entirely with costs being the cause.

It is so ordered

Dated, signed and Delivered at Thika this 8th day of April 2021.

L. GACHERU

JUDGE

8/4/2021

Court Assistant -  Phyllis

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Plaintiff/Applicant

M/s Wangare for the Defendant/Respondent

L. GACHERU

JUDGE

8/4/2021