1.The notice of motion that is the subject of this ruling is dated February 8, 2023. The court has been moved pursuant to Sections 1A, 1B, 18, 63 (e) and 89 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The applicant has sought the following substantive reliefs:-a)Ukwala ELC Case Number E16 of 2020 be transferred to this court for further proceedings; andb)Costs be in the cause.
2.The motion was based on grounds set out on its face and on the supporting affidavit of the applicant’s counsel Mr Charles Odhiambo Odera sworn on February 8, 2023.
3.In summary, the applicant instituted Ukwala PM ELC case no E16 of 2020 against the respondents over land parcels no Uholo/Sigomere/1065, 1066, 1068, 1625 and 1626 (‘the suit properties’). A valuation report prepared subsequent to filing suit established the value of the suit properties were Kshs 22,300,000/-. This was beyond the pecuniary jurisdiction of the Trial Magistrate. Consequently, the case should be transferred from the subordinate court to a court of competent jurisdiction.
4.Despite service, neither the respondents nor the interested party participated in these proceedings. Notwithstanding the motion was unopposed, this court has to determine its merits and evaluate it based on provisions of law and legal principles.
5.Having carefully considered the motion, affidavit and annexures thereto, the single issue for determination is whether the applicant should be granted the orders sought.
6.The jurisdiction of Magistrates’ courts is laid out in the Magistrates’ Courts Act. Its pecuniary jurisdiction is specifically provided for in Section 7(1) of the same Act which provides: -
7.From the proceedings, it is evident the Trial Magistrate who was and still is a Principal Magistrate had a limited pecuniary jurisdiction of Kshs 10,000,000/=. Being alive to lack of jurisdiction, the Trial Magistrate rightfully so, divested herself suo motu on February 3, 2021. The Trial Magistrate directed the parties to transfer the suit to a court of competent jurisdiction hence the instant motion.
8.This court has an equal status with the High Court. Its jurisdiction to transfer a suit is anchored on Section 18 of the Civil Procedure Act which provides as follows: -
11.Transfer or withdrawal of a suit in accordance with Section 18 of the Civil Procedure Act is pegged on the presupposition that the court from which a suit is being transferred or withdrawn from has jurisdiction in the first instance to entertain it.
12.In our case herein, the Trial Magistrate did not have pecuniary jurisdiction to hear and determine the suit. In other words, the suit was a nullity. The transfer of an incompetent suit would sanitize an incompetent suit. This would make this court complacent to an irregularity. There did not exist a competent suit capable of being transferred.
13.The applicant has not satisfied this court that he warrants the grant of the orders sought. It is my finding Ukwala PM ELC case no E16 of 2020 was a nullity since the Trial Magistrate was bereft of jurisdiction. Consequently, it is my finding the motion was not merited.
14.The upshot of the foregoing is that the motion dated February 8, 2023 is not allowed and is hereby dismissed. It is trite law costs follow the event. For the reasons the respondents and interested party did not participate in these proceedings, the applicant shall bear his own costs of the motion. The file is marked as closed.
15.It is so ordered.