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ELCAllowedNotice of Motion dated 23rd June, 2021· [2021] KEELC 329 (KLR)

Jairo Mwashi Khalawa v Gilbert Vusena Mwashi [2021] KEELC 329 (KLR)

Environment and Land Court
14 December 2021
EAE. Asati
500 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 can move a land case to the court nearest where the land and defendant are located.

What this practically means

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Executive summary

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By Notice of Motion dated 23rd June 2021, the Applicant sought transfer of Vihiga SPMC EL Case No. 32 of 2021 from Vihiga SPM's Court to Hamisi PM's Court for hearing and disposal. The grounds were that the Defendant had objected that only Hamisi PM's Court had territorial jurisdiction, and that no party would suffer prejudice since the suit property is situate and the Defendant resides within Hamisi. The application was brought under Article 159 of the Constitution, Sections 18, 1A and 1B of the Civil Procedure Act and Order 51 of the Civil Procedure Rules 2010. The Defendant opposed, contending that counsel for the plaintiff ought to have filed the suit in the correct court before serving summons. Justice Asati held that Section 18 of the Civil Procedure Act empowers the ELC, as a court of equal status with the High Court, to withdraw proceedings from subordinate courts and transfer them to other competent subordinate courts. Applying the overriding objective of just and timely disposal at affordable cost, the court found it fair, just and expedient that the case be tried at Hamisi, since the Defendant resides nearer that court and the suit land lies within its jurisdiction; any expense incurred by the Defendant could be addressed by costs. The court allowed the application, withdrew the case from Vihiga SPM's Court, transferred it to Hamisi PM's Court, directed a mention before the Hamisi PM on 20th December 2021, and awarded costs of the application to the Respondent.

Key legal issues

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01

Whether the suit should be transferred from Vihiga SPM's Court to Hamisi PM's Court

Holding

Transfer allowed because the Defendant resides nearer to Hamisi Court and the suit land lies within Hamisi Court's jurisdiction.

Reasoning

The court found that territorial jurisdiction properly lay with Hamisi PM's Court, where the suit property is situate and the Defendant resides. Acting under Section 18 of the Civil Procedure Act read with the overriding objective in Sections 1A and 1B, the court held transfer would ensure just, timely and affordable disposal. Any expense the Defendant incurred from filing at Vihiga could be addressed by an award of costs.

p. 1

Legal principles established

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  • Section 18 of the Civil Procedure Act empowers the ELC, as a court of equal status with the High Court, to withdraw a suit pending before a subordinate court and transfer it to another competent subordinate court.
  • The power to transfer cases is a mechanism for achieving the overriding objective under Sections 1A and 1B of the Civil Procedure Act of just, timely and affordable disposal of proceedings.

Court orders

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  1. 1.Vihiga SPMC EL Case No. 32 of 2021 is withdrawn from Vihiga SPM's court and transferred to Hamisi PM's court for trial and disposal
  2. 2.The matter to be mentioned before the PM at Hamisi Court on 20th December 2021 for directions
  3. 3.Costs of the Application to the Respondent
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Section 18 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, "Jairo Mwashi Khalawa v Gilbert Vusena Mwashi [2021] KEELC 329 (KLR)", Case Analysis (2021). Notice of Motion dated 23rd June, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/329/eng@2021-12-14

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