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ELCOtherNot stated in the judgment (Mombasa ELC suit; cross-referenced as Malindi ELC Case No. 90 of 2017 – Juja Coffee Exporters Limited v National Bank of Kenya Limited)· [2018] KEELC 4810 (KLR)

Miqdad Entrerprises Limited v National Bank of Kenya Limited [2018] KEELC 4810 (KLR)

Environment and Land Court
23 January 2018
CYC. Yano
3,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it is one court sitting in different stations, moving this Lamu land dispute to Malindi for hearing.

What this practically means

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Executive summary

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The Defendant's Notice of Motion dated 13th June 2017, brought under Order 47 Rule 6(1)(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, sought transfer of this Mombasa suit concerning LAND TITLE NUMBER LAMU/BLOCK IV/2 to Malindi ELC, where Malindi ELC Case No. 90 of 2017 (Juja Coffee Exporters Limited v National Bank of Kenya Limited) was pending, for joint case management. The Defendant argued the suit property lies in Lamu, within Malindi's local jurisdiction, that the two suits concern the same transactions and a restraining order issued in Malindi on 24th April 2017, and that hearing both before the same judge would avoid conflicting decisions. The Plaintiff opposed, contending the auction and parties are based in Mombasa, that Malindi ELC is in Kilifi County, that attending court in Malindi is costly, and that transfer would compromise the Malindi judge's impartiality. Justice C. Yano first confirmed the court's power, adopting Odunga J's reasoning that there is only one ELC sitting in different stations, so 'transfer' between registries is a misnomer, though a judge may direct transmission of a file to another station. Applying the principle that the applicant must make out a strong case beyond mere balance of convenience, the court found the subject property undisputedly in Lamu County near Malindi, the two suits intertwined, the impartiality fears unfounded, and Note 14 of the Gazette Notice No. 5178 practice directions applicable. The court declined to 'transfer' the case as sought but directed that it be heard by the ELC sitting in Malindi and that the file be transmitted to the Malindi registry, with no order as to costs since both courts had jurisdiction.

Key legal issues

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01

Jurisdiction of the ELC to direct hearing of a suit at a different station

Holding

The ELC is one court sitting in different stations; a judge may order transmission/allocation of a file to another station, so the court has power to direct that this suit be heard at Malindi.

Reasoning

Relying on Odunga J in Hangzhou Agrochemical Industries Ltd v Panda Flowers Ltd, the court held that just as there is only one High Court, there is only one ELC; 'transfer' between registries is a misnomer but transmission of a file to another station is permissible in furtherance of the overriding objective.

p. 3
02

Whether the suit should be heard at Malindi rather than Mombasa

Holding

Yes - the suit property is in Lamu County (near Malindi), the issues in the two suits are intertwined, and Note 14 of the practice directions favours filing in the nearest ELC; the court directed the file be transmitted to Malindi.

Reasoning

The court found the subject property is situate in Lamu County, that both courts have jurisdiction, that the two suits raise intertwined issues concerning the effect of an auction sale conducted after a restraining order, and that it is fair the matters be dealt with by one registry to avoid conflicting decisions; the plaintiff's impartiality fears were unfounded.

p. 5

Legal principles established

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  • There is only one Environment and Land Court in Kenya sitting in different stations; the term 'transfer' does not apply to movement of a file from one ELC registry to another, though a judge may order transmission of a file to another station.
  • The onus is on the party applying for transfer of a case to make out a strong case; a mere balance of convenience is insufficient though relevant.

Court orders

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  1. 1.This suit to be heard by the Environment and Land Court sitting in Malindi
  2. 2.The court file to be transferred to the Environment and Land Court Registry at Malindi where further proceedings will be undertaken
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b); Article 159; Article 161(2)(a); Sixth Schedule Part 5 Section 22; Article 262(2)(b) [as cited in judgment]
  • Environment and Land Court Act No. 19 of 2011Sections 4(3), 13, 24, 26(1)(2), 30(1)(2), 3
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 47 Rule 6(1)(2)
  • Gazette Notice No. 5178 of 25th July 2014 - Practice Directions on Proceedings in the Environment and Land CourtNotes 1 and 14; Rule 14

Cases cited (2)

  • Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Limited
    (1989) KLR 1
  • Hangzhou Agrochemical Industries Ltd v Panda Flowers Limited
    (2012) eKLR
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011 (Sections 4(3), 13, 24, 26, 30) pursuant to Article 162(2)(b) of the Constitution; Order 47 Rule 6 Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Miqdad Entrerprises Limited v National Bank of Kenya Limited [2018] KEELC 4810 (KLR)", Case Analysis (2018). Not stated in the judgment (Mombasa ELC suit; cross-referenced as Malindi ELC Case No. 90 of 2017 – Juja Coffee Exporters Limited v National Bank of Kenya Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4810/eng@2018-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.