1.Before court is a Notice of Motion dated December 14, 2022 filed by the applicant seeking an order that Machakos CMCC No 136 of 2019 Agriculture Syndicate Limited v Gimu Construction Ltd be transferred to the Environment and Land Court at Machakos for hearing and determination. They also sought the costs of the application.
2.The basis of the application is explained in the Affidavit sworn on December 12, 2022 by the applicant. He stated that on September 21, 2005, the plaintiff in the aforesaid suit filed the suit in the High Court being Civil Suit No 1153 of 2005 seeking injunction against the defendant. That the matter was later transferred to the Environment and Land Court at Nairobi and finally to the Chief Magistrates Court at Machakos on July 15, 2019. He stated that the matter is beyond the pecuniary jurisdiction of the lower court as the counterclaim seeks to transfer 25 acres of LR No 10426/28 with a value of over 20 million per acre. That after filing suit, the applicant separated from the defendant and entered into agreement dated May 26, 2016 granting him a third of the defendant company. That on April 30, 2021, this court declined to transfer this matter from the lower court as the applicant was not a party, but that by the ruling of the lower court dated December 15, 2021, the applicant was joined as an interested party to the suit.
3.He further deponed that the applicant is apprehensive that justice will not be served if the matter is heard by a court that lacks jurisdiction. He attached his Affidavit dated June 2, 2021, the Ruling of this court of April 30, 2021 and the ruling of the lower court of December 15, 2021.
4.The application is opposed. Martin Mutisya Muthengi, a director of the 2nd respondent filed a Replying Affidavit sworn on January 17, 2023. He stated that the origin of the suit in issue was a sale agreement for 25 acres out of LR No 10426/3 and 104426/8 Mavoko Municipality. That that agreement was frustrated by the plaintiff who sold off the property to other parties in 2005 and therefore ownership thereof changed hands. That the 2nd respondent having paid the plaintiff a sum of Kshs 11,600,000/=, the former sought for refund of the said amount in their counterclaim. That the 2nd respondent’s efforts to stop the sale by the plaintiff was dismissed vide the ruling of the High Court on December 13, 2005 in the presence of the 2nd respondent’s directors including the applicant, who was in contempt of court and had attended court to purge the contempt.
5.That therefore the 2nd respondent’s prayer for specific performance was overtaken by the order of court made on September 30, 2005. He stated that the valuation report showing a value of Kshs. 80,000,000/= was in regard to a different parcel of land being LR 10426/24 and that the 2nd respondent has no interest in that land, and if the applicant has an interest he can file a separate suit.
6.He stated that the defendant’s counterclaim in the lower court is for refund of Kshs. 11,600,000/= which is within the pecuniary jurisdiction of defendant the lower court. He maintained that the suit before the lower court is for breach of contract where the applicant was not party to and is not a in the lower court but merely an interested party and therefore the instant application is misplaced.
7.In a rejoinder, the applicant filed a Supplementary Affidavit dated April 20, 2023. He stated that it is impossible to obtain valuation for the suit property as he never got title thereto, but that advertisements in the area in 2014 show that one acre is sold at Kshs. 30,000,000/= and that a similar property was sold at Kshs. 10,000,000/= per acre. That, part of the suit property is vacant and the court will therefore not be making orders in vain. He attached an advertisement in the Daily Nation newspaper of October 8, 2014, a valuation report dated July 17, 2013 and satellite pictures of the suit property.
8.The application was disposed by way of written submissions. On record are the applicant’s submissions dated April 19, 2023 and supplementary submissions dated May 23, 2023 as well as the respondent’s submissions dated April 12, 2023.
Analysis and determination
14.The court has carefully considered the application, the response thereto and rival submissions. The issues that arise for determination are;a.Whether this application is res judicata in view of the decision in ELC Miscellaneous Application No. 20 of 2020, andb.Whether there is justification to transfer Machakos CMCC 136 of 2019 to this court.
15.The doctrine of res judicata bars the court from trying an issue or a suit which has already been determined by a competent court with finality, where the parties or their privies and the issue in contention in the previous suit are the same as those in the current suit.
20.The doctrine of res judicata frowns upon the escalation of litigation horizontally by filing a fresh suit instead of seeking review in the court that made a previous decision or escalating litigation vertically by way of appeal.
21.I have considered the decision of this court made on April 30, 2021, in ELC Misc. No. 20 of 2020, concerning an application for joinder and transfer of Machakos CMCC No. 136 of 2019 to this court. In that matter, the parties were the same and the issue being transfer of suit was the same as the issue now before court. However, that previous suit was struck out for want of locus on the part of the applicant as he was not a party to the suit that he was seeking to transfer. As that suit was not heard on merit but struck out for lack of standing on the part of the applicant, I find and hold that the instant application is not res judicata.
22.On the issue of transfer of suit, section 18 of the Civil Procedure Act provides for transfer of suits as follows;Power of High Court to withdraw and transfer case instituted in subordinate court1.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; orb.withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i.try or dispose of the same; orii.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.
23.Therefore, this court has power to transfer any suit pending before the lower court to this court, where the interest of justice would require transfer. The reason why the transfer is sought by the applicant herein is that there is a counterclaim for transfer of 25 acres to the defendant and that one acre is valued at over 20 million shillings and that therefore the magistrates court has no pecuniary jurisdiction to hear and determine the suit.
24.By virtue of section 9 of the Magistrates Courts Act, a Chief Magistrate who is at the apex of the magistracy has jurisdiction to determine disputes whose value of the subject matter does not exceed 20 million. Therefore, the issue herein is whether the value of the subject matter in the dispute in Machakos CMCC No 136 of 2019 is more than Kshs. 20 million. For purposes of determining jurisdiction, the value of the subject matter can be deduced from the pleadings.
25.It is trite, and provided in section 107 of the Evidence Act, that whoever alleges is under duty to prove their allegations. In the instant application, the applicant did not attach pleadings filed before the lower court in Machakos CMCC No. 136 of 2019. He only states that there is a counterclaim for transfer 25 acres and that each acre of land has a value of over Kshs. 20 million. However, it is not disputed that the applicant is neither a plaintiff nor defendant in the lower court. He is merely an interested party, who lays claim on a third of the defendant’s assets, having ceased from the defendant’s directorship. Therefore, the applicant has no claim or counterclaim in his own right before the lower court but merely interested in the outcome or decision that will come from that court, because according to him, either way, he will be affected by that decision in view of his claim of a third of the defendant’s assets. On the other hand, the defendant in the suit before the lower court insists that their counterclaim is for Kshs. 11,600,000/= as the suit property already changed hands from the plaintiff to third parties and their request for injunction to stop the transfer was dismissed, hence their prayer for specific performance was overtaken by events and became moot.
26.In view of the a foregoing circumstances, the defendant being the owner of the counterclaim, is the only one who determines what he wants from court, and the applicant a mere interested party and who has not filed any claim before the lower court cannot be heard to insist that there is a counterclaim for transfer of 25 acres, when he himself does not have any claim before that court. If indeed he wants to make a claim for transfer of land as he states, he is at liberty to file that claim before the ELC at Machakos, otherwise, there is no basis for the application herein and there is no evidence by the applicant that the subject matter in Machakos CMCC No. 136 of 2019 is more than 20 million.
27.In the premises, I find no merit in the application dated December 14, 2022 and the same is hereby dismissed with costs to the respondent.
28.It is so ordered.