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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 147 (KLR)

Mary Musuki Mudachi & another v Anthony Muteke Mudachi & 2 others; Elijah K. Kimanzi & 6 others (Interested Parties) [2021] KEELC 147 (KLR)

Environment and Land Court
15 December 2021
LNL.L. Naikuni
3,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that filing a land case at the wrong ELC registry doesn't invalidate it — only convenience dictates where it should be heard.

What this practically means

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Executive summary

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The 1st and 2nd Defendants raised a preliminary objection dated 17th November 2021 seeking dismissal of the Plaintiffs' suit and notice of motion for temporary injunction, both filed on 2nd November 2021, on the ground that the Environment and Land Court at Mombasa lacked territorial jurisdiction: the suit properties, Land Reference No. 28164 Plot No. Kawala 'B'/10 and Mariakani/Kawala 'B'/310, lie at Mariakani within Kilifi County, within the local limits of the ELC at Malindi, and the Defendants were said to work for gain elsewhere. Counsel for the Defendants relied on Section 12(1) of the Civil Procedure Act and the Court of Appeal decision in Phoenix of East Africa Assurance, arguing a suit filed without jurisdiction is a nullity incapable of transfer. The Plaintiffs countered that the ELC under Article 162(2)(b) has original and unlimited jurisdiction throughout Kenya, and that the objection failed the Mukisa Biscuits threshold. The court framed three issues and held the objection met the threshold as a pure point of law, but distinguished Phoenix: the ELC at Mombasa was clothed with jurisdiction, and Section 12(1) concerns venue and logistical convenience rather than jurisdiction, so dismissing coastal land suits filed at Mombasa would undermine access to justice under Article 48. The preliminary objection was dismissed with costs to the Plaintiffs, but the court acceded to the Defendants' venue preference and transferred the suit to ELC Malindi, directed the filing of defences within thirty days, ordered an inhibition registered over the suit properties to preserve them, and set the matter down for mention at Malindi on 24th January 2022.

Key legal issues

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01

Whether the objection met the threshold of a preliminary objection

Holding

The court affirmed the Mukisa Biscuits threshold and found the objection was founded on a pure point of law

Reasoning

The court adopted the definition from Black Law Dictionary and Lord Newbold's classic formulation in Mukisa Biscuits, that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct. It also relied on Attorney General v Andrew Mwaura Githinji. It affirmed that such an objection may be raised at any time before the conclusion of the case.

p. 3
02

Whether the ELC at Mombasa had jurisdiction to hear the case

Holding

Yes; the ELC is a superior court of unlimited jurisdiction under Article 162(2)(b) and its territorial venue under Section 12(1) of the Civil Procedure Act is a matter of convenience, not jurisdiction

Reasoning

The court distinguished the Phoenix of East Africa decision, holding that a land suit filed before the ELC at a registry other than the one geographically proximate to the land is not a nullity; only a suit filed in a court wholly lacking subject-matter jurisdiction is a nullity. It held 'local limits' is a venue question and that dismissing coastal land suits filed at Mombasa would imperil access to justice under Article 48.

p. 4
03

Whether the suit should nonetheless be transferred to Malindi

Holding

Yes; the court acceded to the Defendants' proposal that the suit be heard within the local limits of the land and ordered transfer to ELC Malindi

Reasoning

Although jurisdiction existed at Mombasa, the court found it proper to transfer the suit to the Environment and Land Court at Malindi, where the suit properties at Mariakani, Kilifi County are situated, and directed mention there for further directions.

p. 5

Legal principles established

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  • The ELC is a superior court with jurisdiction throughout the Republic over environment and land disputes; a suit filed in the wrong territorial venue of that court is not a nullity, unlike a suit filed in a court wholly lacking subject-matter jurisdiction
  • 'Within local limits' relates to venue and logistical convenience, and a suit may be instituted where parties reside or work for gain or where land is situated

Court orders

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  1. 1.The preliminary objection dated 17th November, 2021 lacks merit and is dismissed with costs to the Plaintiffs
  2. 2.The 1st, 2nd and 3rd Defendants and all Interested Parties, having been served with Summons to Enter Appearance on 17th November 2021, are directed to file their Defence and/or Counter Claim within thirty (30) days
  3. 3.The Plaintiffs shall be at liberty to file a Reply to the Defence and/or Counter Claim within fifteen (15) days of service; failing which Interlocutory Judgment to be entered under Order 10 Rule 10 of the Civil Procedure Rules
  4. 4.This suit be transferred to the Environment and Land Court, Malindi, within the local limits where the suit land is situated
  5. 5.The Land Registrar, Kilifi is directed to register an inhibition against all that parcels of land known as Land Reference No. 28164 Plot No. Kawala 'B'/10 and Mariakani/Kawala 'B'/310 pursuant to Section 68(1) & (2) and 69 of the Land Registration Act, 2012 and Regulation 79(1), (2) & (3) of the Land Registration (General) Regulations, within 30 days at the costs of the Plaintiffs until the matter is heard and determined
  6. 6.The matter be mentioned before the Environment and Land Court, Malindi on 24th January, 2022 for further directions and/or orders

Authorities

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Legislation

  • Civil Procedure ActSections 12(1), 15(1), 16, 18(1)
  • Civil Procedure Rules, 2010Order 51 Rule 14; Order 2 Rule 6; Order 7; Order 10 Rule 10; Order 11
  • Constitution of KenyaArticle 162(2)(b) (cited as 162(b)); Article 48; Article 159
  • Environment and Land Court Act, No. 19 of 2012Sections 3, 4, 13(1), 19(2)
  • Land Registration Act, 2012Sections 68(1) & (2), 69, 101
  • Land Act, 2012Section 150
  • Land Registration (General) RegulationsRegulation 79(1), (2) & (3)
  • Interpretation and General Provisions ActCap. 2

Cases cited (8)

  • Phoenix of East Africa Assurance Company Limited v S.M. Thiga T/A Newspapers Services
    Civil Appeal No. 224 of 2010
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A. 696
  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited
    (1989) 1 KLR
  • County Government of Migori v I N B Management IT Consultant Limited
    (2019) eKLR
  • Hon (Lady) Justice Kalpana H Rawal v Judicial Service Commission and others
    Supreme Court Civil Application No. 11 of 2016
  • Ocheja Immanuel Dangama v Hon. Atoi Aidoko Aliaswan and 4 others
    Supreme Court Case No. 11 of 2012
  • Kharisa Kyango v Law Society of Kenya
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Environment and Land Court Act, No. 19 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Mary Musuki Mudachi & another v Anthony Muteke Mudachi & 2 others; Elijah K. Kimanzi & 6 others (Interested Parties) [2021] KEELC 147 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/147/eng@2021-12-15

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