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ELCOtherNot stated in the judgment· [2019] KEELC 246 (KLR)

Omar Dhadho v Mohamed Masoud & another [2019] KEELC 246 (KLR)

Environment and Land Court
18 December 2019
CYC.K. Yano
1,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st Defendant, Mohamed Masoud, moved the Environment and Land Court at Mombasa by Notice of Motion dated 25th April 2019 seeking transfer of the suit to the Environment and Land Court at Malindi on the grounds that the suit property lies at Hola in Tana River County, that the nearest competent court is the ELC Malindi, and that hearing the matter in Mombasa would occasion unjust expense to the defendants and witnesses, amounting to forum shopping by the plaintiff. The plaintiff opposed, contending that the application was incompetent and an abuse of process, that the court had jurisdiction, and that Mombasa was on a direct route and more convenient. The sole issue framed by the court was whether the suit should be transferred to the ELC Malindi. Relying on Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd on jurisdiction, and concurring with Odunga J in Hugzhou Agrochemical Industries Ltd v Panda Flowers Ltd that there is only one ELC sitting in different stations, the court held that the term 'transfer' does not strictly apply between registries of the same court, but a judge may order transmission or allocation of a file to another station. Noting that the suit property is in Tana River County, the 1st Defendant lives and works in Hola, and the nearest ELC is Malindi, and applying Sections 12 and 15 of the Civil Procedure Act and Note 14 of the Chief Justice's practice directions, the court directed that the suit be heard by the ELC sitting in Malindi and that the file be transmitted to the ELC Registry at Malindi. As both courts had jurisdiction, there was no order as to costs.

Key legal issues

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01

Whether the ELC at Mombasa has power to direct that the suit be heard at the ELC Malindi

Holding

Yes. Although there is only one ELC sitting in different stations and the term 'transfer' does not strictly apply, a judge of the ELC may order transmission or allocation of a case file to a judge at another station.

Reasoning

The court relied on Hugzhou Agrochemical Industries Ltd v Panda Flowers, agreeing with Odunga J that there is only one High Court/ELC sitting in different stations. Section 4(3) of the ELC Act gives the court jurisdiction throughout Kenya, and Note 14 of the Chief Justice's practice directions requires new land cases to be filed in the nearest ELC. The court therefore distinguished 'transfer' from transmission/allocation of a file between stations of the same court.

p. 2
02

Whether the suit should be heard at Malindi rather than Mombasa

Holding

Yes. The suit property is situated in Tana River County, the defendants reside in Hola, and the nearest ELC is Malindi; no good reason was given for filing at Mombasa.

Reasoning

Applying Sections 12 and 15 of the Civil Procedure Act, a suit should be instituted where the property is situate and where the defendant resides or the cause of action arises. The subject property is in Tana River County and the 1st Defendant lives and works in Hola. The plaintiff's claim that Malindi would be more expensive did not hold water, and the overriding objective favours accessible, proportionate and efficient disposal.

p. 3

Legal principles established

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  • There is only one Environment and Land Court in the Republic of Kenya sitting in different stations; the term 'transfer' does not apply between one ELC registry and another, though a judge may order transmission or allocation of a case file to another station
  • In appointing a particular place of trial the court shall have regard to the convenience of the parties and witnesses and all other circumstances of the case

Court orders

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

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 161(2)(a)
  • Environment and Land Court Act No. 19 of 2011Section 4(3)
  • Environment and Land Court Act No. 19 of 2011Sections 24, 26, 30(1) and (2), Section 13, Section 3
  • Civil Procedure ActSections 1A, 1B, 3A, 12, 15
  • Civil Procedure RulesOrder 47 Rule 6
  • Gazette Notice No. 5178 of 25th July 2014 (Practice Directions on establishment of Environment and Land Courts)Notes 1 and 14

Cases cited (2)

  • Owners of Motor Vessel "Lillian S" –v- Caltex Oil Kenya Limited
    (1989) KLR 1
  • Hugzhou Agrochemical Industries Ltd –v- Panda Flowers Limited
    (2012) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omar Dhadho v Mohamed Masoud & another [2019] KEELC 246 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/246/eng@2019-12-18

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