Avid Developer Limited v Blue Horizon Properties Limited & 2 others [2020] KEELC 663 (KLR)
The bottom line
#Kenya's Environment & Land Court confirmed that any of its stations can hear your land case, so getting a transfer to another town needs strong evidence, not just the land's location.
What this practically means
#Executive summary
#Key legal issues
#Whether the Thika Environment & Land Court has jurisdiction over a suit concerning land situate in Mavoko, within the local limits of the Machakos ELC
Yes - the ELC has equal status with the High Court and jurisdiction across the country; Section 12 of the Civil Procedure Act on local limits does not restrict it
The court held that the ELC, being a specialised court with the same status as the High Court under the Constitution, enjoys the High Court's country-wide jurisdiction. The location of the suit property within Machakos' local limits does not oust Thika's jurisdiction. Following L N v A N alias N M, Section 12(d) does not relate to the High Court; convenience-based factors, not jurisdiction, govern transfer.
Whether the addition of parties and amendment of pleadings means the suit must start de novo, justifying transfer
No - no directions have been taken on de novo hearing, so it cannot be authoritatively said the suit would start de novo, and in any event that alone cannot justify transfer
The court observed that while parties had been added and pleadings amended, no directions had been taken and no facts considered on whether the suit would start de novo. Even if the court later ordered a de novo hearing, that would not be the only reason to transfer. The suit had already moved from Nairobi to Machakos to Thika; further transfer would prejudice expedition and the interest of justice.
Whether balance of convenience and expedition favour transfer to Machakos
No - no evidence established that the Machakos ELC would expedite the matter more than Thika
The applicant's only substantive grounds were the property's location and the alleged lack of backlog in Machakos. The court found no evidence supporting the claim that Machakos would expedite the matter. Weighing the history of transfers and the requirement of fresh directions if re-transferred, the balance of convenience, expense, interest of justice and hardship factors favoured concluding the suit in Thika.
Legal principles established
#- The Environment & Land Court, though specialised, has equal status with the High Court and its jurisdiction extends throughout the country; the local-limits rule in Section 12 of the Civil Procedure Act does not confine the ELC's jurisdiction
- In considering whether to transmit a suit to another judge/station, the court considers compliance with the Civil Procedure Act, balance of convenience, expense, interest of justice, possibilities of undue hardship and whether hearing where filed would prejudice the party seeking transfer
Court orders
#- 1.The Notice of Motion Application dated 30th July 2019 is dismissed entirely with costs to the Plaintiff/Respondent
- 2.The 1st Defendant/Applicant is ordered to comply with the court's earlier orders for costs, failing which they will not have audience of the Court
- Jurisdiction invoked
- Jurisdiction of the Environment & Land Court under Article 162(2) of the Constitution (equal status with the High Court); transfer of suits under the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Avid Developer Limited v Blue Horizon Properties Limited & 2 others [2020] KEELC 663 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/663/eng@2020-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.