1. On 20th June, 2024 counsel informed the court that the present matter was transferred from the ELC to the High Court. The court accordingly directed that the parties submit on the question of whether this court has jurisdiction to hear a matter transferred to the High Court from the ELC.
2. Counsel submitted that at page 8 of the ruling, the Judge observed that the substantive issue in the suit falls within the jurisdiction of the High Court. The judge went on to find that the ELC has no jurisdiction. He submitted that the transfer to the present court was proper in spite of the fact that the Judge had declared he had no jurisdiction to hear the matter.
3. This court differed in opinion and stated its reasons. Counsel requested written reasons from the court. The same are below, and expound on the reasons already provided to counsel.
4. In my view, once the judge determined he had no jurisdiction, it is trite he had no jurisdiction to transfer the suit to the High Court from the ELC.
5. I do not think that our constitutional structure permits transfer of cases from the ELC to the High Court for the reason that the jurisdiction of each is exclusive and distinct.
6. If a specialized court has jurisdiction over a matter, then the High Court may not also, at the same time have jurisdiction over the same matter and, or, vice versa.
7. As regards the question of transfer; the law is settled. In Abraham Mwangi Wamigwi V Simon Mbiriri Wanjiku & Another [2012] eKLR the court set out the law relating to transfer of any suits reiterating the principles set out in the seminal case of Kagenyi vs. Musiramo , in which Sir Udo Udoma, CJ made it clear that an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court which has jurisdiction to try it.
8. Further in the said case, Odunga, J. as he then was, explained that “The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognised by law.”
9. Guided by the authorities above, I am persuaded that because the ELC court determined it had no jurisdiction to hear the matter, it could not then, in the same breath, go on to transfer the same suit to the High Court. No competent suit existed before the court, and therefore there was nothing for it to transfer.
10. This court finds that it may not deal with a matter transferred to it without jurisdiction to do so. Accordingly, the court is of the view it ought down its tools and allow the parties to regularize the position by taking the appropriate and or necessary action.